Keeping Current with Form 8-K PDF Free Download

Name: Keeping Current with Form 8-K PDF
Author: laura529339

1 / 140

0 views•140 pages

Keeping Current with Form 8-K PDF Free Download

Keeping Current with Form 8-K PDF free Download. Think more deeply and widely.

Keeping Current with Form 8-K

A PRACTICAL GUIDE ǀ DECEMBER 2024

About This Guide

We have prepared this Guide to assist public companies in understanding and complying with Form 8-K

reporting requirements. This Guide describes Form 8-K primarily from the perspective of a U.S. operating

company that has a class of securities registered pursuant to Section 12 of the Securities Exchange Act of

1934, as amended (the “Exchange Act”), and is not a shell company, a foreign private issuer, an asset-backed

issuer, an investment company or a business development company.

In addition to summarizing the events that trigger a Form 8-K filing requirement and the disclosures that must

be provided when such an event occurs, this Guide includes a number of practice tips that represent our

understanding of the disclosure requirements and how they should generally be applied. The practice tips

contained in this Guide must be considered in light of the specific facts and circumstances of each situation,

interpretive guidance that the SEC staff from time to time provides and developments in practice that evolve

over time.

Please keep in mind that this Guide is for general informational purposes only and does not represent our legal

advice as to any particular set of facts; nor does this Guide represent any undertaking to keep recipients

advised as to all relevant legal developments. You should contact your regular WilmerHale attorney to discuss

the Form 8-K requirements applicable to specific factual situations.

* * *

Table of Contents

Introduction ................................................................................................................................................... 1

Filing Mechanics ........................................................................................................................................... 2

Reportable Events ....................................................................................................................................... 10

Impact on Controls and Procedures ............................................................................................................ 63

Liabilities and Limited Relief ..................................................................................................................... 66

APPENDIX A: Form 8-K

APPENDIX B: Compliance and Disclosure Interpretations: Exchange Act Form 8-K

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 1

Introduction

Form 8-K requires public companies to make

prompt disclosures about a large number of

specified events. Although Form 8-K does not

mandate current reporting of all material events, it

goes a long way toward requiring public

companies to keep the markets informed of

material developments on a day-to-day basis.

Public companies need to ensure that they

implement and maintain disclosure controls and

procedures that will permit them to identify and

analyze developments that could trigger a Form 8-

K filing requirement. In addition, some of the

Form 8-K disclosure requirements are triggered by

a decision of the board of directors, so it is

important to plan board actions with these

requirements in mind.

This Guide provides a summary of both the

substantive and procedural aspects of Form 8-K.

The first section of this Guide discusses filing

mechanics, including filing deadlines, cover page

check boxes, exhibit requirements and certain

other technical and related matters. The second

section discusses each reportable event and

includes practice tips for complying with the Form

8-K requirements and implementing effective

controls and procedures. The last two sections of

this Guide outline the impact of the Form 8-K

requirements on controls and procedures and the

liabilities and limited relief related to the

requirements.

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 2

Filing Mechanics

Filing Deadlines

Except as described below, a Form 8-K must be

filed within four business days after the occurrence

of a reportable event. For purposes of counting,

day one is the first business day after the day on

which the reportable event occurs.

The following table indicates the day of the week

on which Form 8-K filings will generally be due

under the standard four-business-day deadline:

Date of Event

Due Date (assuming

no Federal holidays)

Sunday

Thursday

Monday

Friday

Tuesday

Monday

Wednesday

Tuesday

Thursday

Wednesday

Friday

Thursday

Saturday

Thursday

Different deadlines may apply in the case of:

• Item 1.05: Material cybersecurity incidents

— As discussed under “Reportable Events –

Item 1.05,” in two limited circumstances

where: (i) disclosure poses a substantial risk to

national security or public safety, or (ii) the

data breach involves customer proprietary

network information (“CPNI”) that must be

disclosed pursuant to certain rules of the

Federal Communications Commission (the

“FCC”), a longer reporting period may apply.

• Item 2.02: Earnings announcements — A

company that wants to take advantage of the

limited exemption relating to earnings calls

that are “complementary” to an earnings press

release must furnish a Form 8-K containing its

earnings press release no later than when the

call begins.

• Item 2.03: Creation of a contingent

obligation under certain off-balance sheet

arrangements — As discussed under

“Reportable Events – Item 2.03,” a longer

reporting period may apply when neither the

company nor any of its affiliates is a party to

the transaction or agreement creating the

contingent obligation arising under the off-

balance sheet arrangement.

• Item 2.05: Termination of employees as

part of a plan to exit an activity — As

discussed under “Reportable Events – Item

2.05,” a longer reporting period may apply.

• Item 2.06: Material impairments identified

in connection with preparation, review or

audit of financial statements — As discussed

under “Reportable Events – Item 2.06,” in

most situations the event may instead be

reportable in the next Form 10-K or Form 10-

• Item 5.02(c): The appointment of certain

new officers — As discussed under

“Reportable Events – Item 5.02,” in certain

limited circumstances the company may delay

the filing of a Form 8-K announcing the

appointment of a new officer.

• Item 5.04: Temporary suspension of

trading under the company’s employee

benefit plans — The required Form 8-K must

be filed no later than the fourth business day

after which the company receives the notice

required by Section 101(i)(2)(E) of ERISA or,

if such notice is not received by the company,

on the same date on which the company

transmits a timely notice to an affected officer

or director as required by Regulation BTR.

• Item 5.07(d): Company’s decision

regarding the frequency of future

shareholder advisory votes on executive

compensation — As discussed under

“Reportable Events – Item 5.07,” a longer

reporting period applies.

• Item 5.08: Shareholder director

nominations — The required Form 8-K must

be filed within four business days after the

company determines the anticipated meeting

date.

• Items 7.01 or 8.01: Regulation FD

disclosure — If a Form 8-K is being filed or

furnished to satisfy a company’s obligations

under Regulation FD, the 8-K must be

submitted within the timeframes required by

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 3

Regulation FD (that is, no later than when

intentional disclosure of material non-public

information is made in a non-public forum or

promptly after discovery of a non-intentional

disclosure).

• Item 8.01: Voluntary disclosures — No

deadline applies to matters that are voluntarily

being reported on a Form 8-K by the company.

No extension of the Form 8-K due date is

available. As discussed in the section of this

Guide titled “Liabilities and Limited Relief,” the

SEC has provided some relief, including a limited

safe harbor, for companies that fail to timely file a

Form 8-K relating to certain reportable events.

The same filing deadlines apply regardless of

whether a company is a large accelerated filer, an

accelerated filer or a non-accelerated filer.

Use of Forms 10-Q or 10-K or Proxy

Statement Instead of Form 8-K

If a Form 8-K triggering event occurs within four

business days before the company’s filing of a

Form 10-Q or Form 10-K, the company is

generally allowed to satisfy its Form 8-K reporting

obligation by including the disclosure in Item 5

(Other Information) of Part II of its Form 10-Q or

Item 9B (Other Information) of its Form 10-K, as

the case may be. (SEC CDI Question 101.01.)

The two exceptions are:

• Item 4.01 (Changes in Registrant’s Certifying

Accountant); and

• Item 4.02 (Non-Reliance on Previously Issued

Financial Statements or a Related Audit

Report or Completed Interim Review).

In the cases of Items 4.01 and 4.02, a Form 8-K

must be filed.

Forms 10-Q and 10-K cannot be used to report an

amendment to a previously filed Form 8-K. Any

amendment to a previously filed Form 8-K must be

filed on Form 8-K/A.

Based on General Instruction B.3 to Form 8-K,

regarding “previously reported” information,

timely disclosure of information in a proxy

statement can also satisfy the Form 8-K filing

requirement (except, again, in the case of Items

4.01 and 4.02 of Form 8-K, which always require a

Form 8-K).

EDGAR and Public Dissemination

All Form 8-Ks must be submitted via the SEC’s

EDGAR system, absent the availability of a

hardship exemption under Regulation S-T. The

company should keep in mind that documents

submitted via EDGAR become publicly available

within seconds of their acceptance, and that online

services will send immediate email alerts to

subscribers tracking the company. As with press

releases, in many cases it will be preferable to

submit the Form 8-K outside of regular stock

market trading hours. In any event, the company’s

investor relations group should be kept informed

as to the timing of any Form 8-Ks so that they are

not caught off guard by investor calls.

While EDGAR submissions can be made from 6

a.m. to 10 p.m. Eastern time, Monday through

Friday, except federal holidays, EDGAR

submissions of Form 8-Ks must be commenced by

5:30 p.m. Eastern time in order to be considered

filed on the date submitted. Submissions that are

commenced after 5:30 p.m. Eastern time are

considered to be filed on the next business day.

A company that has filed a late Form 8-K due to

unexpected, exceptional technical difficulties can

request that the SEC adjust the filing date pursuant

to Rule 13(b) of Regulation S-T.

Stock Exchange Requirements

General Instruction E to Form 8-K requires that a

copy of the Form 8-K report be filed with each

exchange where the registrant’s securities are

listed. The term “exchange” as used in the

instruction refers only to domestic exchanges and,

accordingly, Form 8-K reports need to be

furnished only to domestic exchanges. (SEC CDI

Question 101.03.)

If a Form 8-K is filed with the SEC through

EDGAR, then a company listed on the NYSE or

Nasdaq is deemed to have satisfied its obligation to

provide the exchange with copies of the report.

Paper copies of a Form 8-K should only be sent to

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 4

the exchange if the Form 8-K is not filed via

EDGAR.

The stock exchanges each have rules requiring that

they be given advance notice of disclosures of

material information, including disclosures made

solely by means of Form 8-K. A company must

follow the applicable rules of its exchange:

Exchange Requirement

Nasdaq Nasdaq Marketplace Rule 5250

and IM-5250-1, “Disclosure of

Material Information”

NYSE NYSE Listed Company Manual

Section 202.06, “Procedure for

Public Release of Information;

Trading Halts”

The Filed vs. Furnished Distinction

In some circumstances, the SEC has provided that

information “furnished” to it (rather than “filed”

with it) will be relieved from some (but not all)

liability provisions under the federal securities

laws. In such cases, the information that is

“furnished”:

• is not subject to Section 18 of the Exchange

Act, a liability provision that, historically, has

not been used very often by private litigants

because other liability provisions (in particular

Section 10(b) of the Exchange Act) are

generally easier for a plaintiff to successfully

assert;

• is not automatically incorporated by reference

into registration statements, and therefore will

not be subject to the stricter liability standard

that applies to registration statements; and

• is not subject to the list of practices relating to

non-GAAP financial measures that are

prohibited in SEC filings by Item 10(e) of

Regulation S-K (although with respect to Item

2.02 of Form 8-K other portions of Item 10(e)

do apply, as discussed in more detail under

“Reportable Events – Item 2.02”).

Information about most Form 8-K reportable

events is not relieved from the liability and

disclosure requirements described above. The

only Form 8-K reportable events that may be

“furnished” are:

• Item 2.02 (Results of Operations and Financial

Condition); and

• Item 7.01 (Regulation FD Disclosure).

The SEC has clarified that if a report on Form 8-K

contains disclosures under Item 2.02 or Item 7.01,

whether or not the report contains disclosures

regarding other items, all exhibits to that report

relating to Item 2.02 or Item 7.01 will be deemed

furnished and relieved from liability as described

above unless the company specifies exhibits, or

portions of exhibits, that are intended to be treated

as filed. The company should continue to be

careful about the language it uses to refer to the

exhibits furnished under Item 2.02 and Item 7.01

so that it does not unintentionally cause an exhibit

to be treated as filed when the liability relief

described above would otherwise be available.

Even where the Form 8-K requirements allow

information to be furnished, it may be advisable in

certain situations to file this information so that it

is automatically incorporated by reference into

active registration statements.

Cover Page of Form 8-K

Using Form 8-K to Simultaneously Satisfy

Filing Requirements Under Rule 425,

14a-12(b), 14d-2(b) or 13e-4(c)

When filing a Form 8-K to report an M&A-related

agreement or in connection with a proxy

solicitation or tender offer, the company should,

when appropriate, check the box on the cover page

of Form 8-K to indicate that the Form 8-K satisfies

the company’s filing obligations pursuant to:

• Rule 425 under the Securities Act of 1933, as

amended (the “Securities Act”), regarding

written communications related to business

combination transactions;

• Rule 14a-12(b) under the Exchange Act,

relating to soliciting materials;

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 5

• Rule 14d-2(b) under the Exchange Act,

relating to pre-commencement

communications in connection with a third-

party tender offer; or

• Rule 13e-4(c) under the Exchange Act,

relating to pre-commencement

communications in connection with an issuer

self-tender offer.

Checking the box on the cover page of Form 8-K

will eliminate the need to make a separate filing

under Rules 425, 14a-12(b), 14d-2(b) or 13e-4(c),

so long as the Form 8-K includes the substantive

information required by such other rules.

In order to be able to check one of these four

boxes, the EDGAR system requires that the Form

8-K include disclosure under specified items, as

summarized in the following chart (EDGAR Filer

Manual (Volume II) (September 2023 edition)):

Form

8-K

Item

Additional Filing Obligation

425 DEFA14A

DFAN14A SC TO-C

1.01 X X X

1.02 X X X

2.01 X

5.01 X X

8.01 X X X

Note that these four check boxes are not available

when the Form 8-K only includes items that are

furnished rather than filed.

When one of these check boxes is properly used,

the EDGAR system will treat the Form 8-K as two

separate submissions, each of which will be

assigned its own accession number.

Cover Page Requirements

The cover page of a Form 8-K is required to

include information regarding the company’s

securities that are listed on an exchange. The

required information, which is presented in a

specified tabular format, is the title of each class of

securities registered under Section 12(b) of the

Exchange Act (which can include debt securities),

the trading symbol of each such security and the

name of the exchange on which it is registered.

The Form 8-K’s cover page also includes two

check boxes relating to emerging growth

companies (“EGCs”). The first check box requires

the company to check the box if it is an EGC. The

second check box requires an EGC to check the

box if it has elected not to use the extended

transition period for complying with new or

revised financial accounting standards.

Regardless of whether or not a company is itself

actually an EGC, the cover page including these

two check boxes should be included in all Form

8-Ks.

Cover Page Tagging

Companies are required to tag each data field that

appears on the Form 8-K cover page. Companies

satisfy the requirement to submit a Cover Page

Interactive Data File using an Inline XBRL

Document Set with Exhibit 101 attachments. The

Cover Page Interactive Data File is identified as

Exhibit 104 in the exhibit list (under Item 9.01 of

Form 8-K) and should cross reference the

Interactive Data Files submitted as Exhibit 101

(e.g., “Cover Page Interactive Data File (formatted

as Inline XBRL and contained in Exhibit 101)”).

If the Form 8-K does not contain any exhibits

other than Exhibits 101 and 104, the company is

not required to include Exhibits 101 and 104 on

the exhibit list (under Item 9.01 of Form 8-K), but

must still submit the required Cover Page

Interactive Data File.

Refer to Interactive Data Files (Other Than for the

Cover Page) below for other tagging requirements.

Reporting Under Multiple Items

In many instances, a single event will trigger

reporting obligations under more than one Form

8-K item. For example:

• A company that hires a new CEO might need

to report the grant of restricted stock under an

unregistered inducement grant to the CEO

under Item 3.02, the election of the CEO as a

director under Item 5.02(d) and the

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 6

employment of a new principal officer under

Item 5.02(c), as well as provide a description

of the new CEO’s employment agreement

under Item 5.02(e).

• A company that acquires a privately held

company in a merger structured as a private

placement might need to report the entry into

the merger agreement under Item 1.01, the

agreement to assume material debt of the

acquired company under Item 2.03 and the

agreement to issue unregistered stock in the

merger under Item 3.02. After the closing of

the merger, the company might need to file

another Form 8-K under Item 2.01 to report

the closing of the acquisition and might also

need to file financial statements under

Item 9.01.

• A company undergoing a significant

restructuring that involves the shutdown of

some of its operating businesses might need to

report the termination of a material definitive

agreement under Item 1.02 and the recording

of material charges under Item 2.05.

When an event triggers more than one Form 8-K

item at the same time, a single Form 8-K should be

filed that identifies by item number and caption all

applicable items being satisfied. However, the

Item 1.01 heading may be omitted in a Form 8-K

that also includes disclosure under any other item,

so long as the substantive disclosure required by

Item 1.01 is included in the Form 8-K. All the

necessary disclosures can be provided in response

to a single item, which can then be incorporated by

reference into the other applicable items. When

reporting under multiple items, care should be

taken to ensure that all of the information required

to be disclosed by each applicable item is

provided.

Exhibit Requirements

In general, copies of the agreements or other

documents underlying a reportable event do not

need to be filed as exhibits to the Form 8-K.

However, there are exceptions to this general rule:

• Item 1.03 (Bankruptcy or Receivership)

calls for the filing as an exhibit of a plan of

reorganization, arrangement or liquidation.

• Item 2.01 (Completion of Acquisition or

Disposition of Assets) calls for the filing as an

exhibit in certain circumstances of financial

statements of businesses acquired, pro forma

financial information and copies of the plan of

acquisition or disposition.

• Item 2.02 (Results of Operations and

Financial Condition) calls for the furnishing

as an exhibit of the text of any public

announcement or release disclosing material

non-public information regarding the

company’s results of operations or financial

condition for a completed quarterly or annual

fiscal period.

• Item 4.01 (Changes in Registrant’s

Certifying Accountant) calls for the filing as

an exhibit of correspondence from the

company’s auditors.

• Item 4.02 (Non-Reliance on Previously

Issued Financial Statements or a Related

Audit Report or Completed Interim

Review) calls for the filing as an exhibit of

correspondence from the company’s auditors.

• Item 5.02 (Departure of Directors or

Certain Officers; Election of Directors;

Appointment of Certain Officers;

Compensatory Arrangements of Certain

Officers) calls for the filing as an exhibit of

correspondence from a director who has

resigned, been removed or refused to stand for

re-election because of a disagreement with the

company.

• Item 5.03 (Amendments to Articles of

Incorporation or Bylaws; Change in Fiscal

Year) calls for the filing as an exhibit of the

text of any amendment to the company’s

charter or bylaws.

The time period for filing financial statements

required under Item 2.01 in connection with

certain completed acquisitions is 71 calendar days

after the date that the initial report on Form 8-K

was required to be filed.

In situations where a definitive material agreement

referenced in a Form 8-K is not required to be filed

as an exhibit to the Form 8-K, the SEC

nevertheless encourages companies to file the

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 7

definitive material agreement as an exhibit to the

Form 8-K when feasible.

Filing a copy of an agreement as an exhibit to the

Form 8-K does not eliminate the need to provide a

brief description of the agreement in the body of

the Form 8-K.

When exhibits are included, the Item 9.01 exhibit

index should appear before the signature required

in the Form 8-K.

Under Item 601(a)(5) of Regulation S-K,

schedules and similar attachments to exhibits are

not required to be filed provided (1) the omitted

schedules and attachments do not contain

information material to an investment or voting

decision and (2) that the omitted information is not

otherwise disclosed in the exhibit or in the

underlying filing. Each exhibit must contain a list

briefly identifying the contents of all omitted

schedules and attachments, but the company is not

required to prepare such a list if information

identifying the omitted schedules and attachments

is already included within the exhibit in a manner

that conveys the subject matter of the omitted

schedules and attachments. A company that omits

schedules or other attachments is not required to

include an express undertaking that it will provide

a copy of the omitted materials to the SEC staff

upon their request (as was required under a similar

prior requirement that related only to M&A

agreements filed under Item 601(b)(2)), but the

company’s obligation to actually provide such

materials, if requested by the SEC staff, remains.

Titan Language

If an exhibit includes representations and

warranties, the company should evaluate the

significance of those representations and

warranties and the possible need to make

additional disclosure so that those representations

and warranties do not convey to investors

information that is materially false or misleading.

Although the SEC staff has indicated that

disclaimers without corrective disclosure will not

insulate a company from liability, many companies

nevertheless include a statement, often referred to

as “Titan” language (named after the company

involved in a 2005 SEC enforcement action

relating to this issue), along the lines of the

following:

“The Agreement has been attached as an exhibit to

this report to provide investors and security

holders with information regarding its terms. It is

not intended to provide any other factual

information about the parties to the Agreement or

any of their respective affiliates. The

representations, warranties and covenants

contained in the Agreement were made only for

the purposes of such Agreement and as of

specified dates, were solely for the benefit of the

parties to such Agreement and may be subject to

limitations agreed upon by the contracting parties.

The representations and warranties may have been

made for the purposes of allocating contractual

risk between the parties to the Agreement instead

of establishing these matters as facts and may be

subject to standards of materiality applicable to the

contracting parties that differ from those applicable

to investors. Investors are not third-party

beneficiaries under the Agreement. In addition,

the assertions embodied in the representations and

warranties contained in the Agreement are

qualified by information in a confidential

disclosure schedule that the parties have

exchanged. Accordingly, investors should not rely

on the representations, warranties and covenants

contained in the Agreement or any descriptions

thereof as characterizations of the actual state of

facts or condition of either of the parties or any of

their respective affiliates.”

Titan language is most commonly seen in

connection with Form 8-Ks reporting M&A

agreements (generally under Items 1.01 or 2.01),

but may also be appropriate for other documents

being filed as exhibits. As noted above, however,

use of a disclaimer may not insulate the company

from claims or liability.

Exhibit Hyperlinking

All exhibits listed in the exhibit index of Form 8-K

(other than those relating to the Cover Page

Interactive Data File) must include an active

hyperlink to such exhibit.

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 8

Interactive Data Files (Other Than for the

Cover Page)

Companies required to file interactive data files

under Regulation S-K Item 601(b)(101) need only

file an interactive data file with a Form 8-K if the

Form 8-K contains (1) disclosure of a material

cybersecurity incident under Item 1.05, with the

requirement to tag responsive disclosure

commencing on December 18, 2024, or (2) audited

annual financial statements that are a revised

version of previously filed financial statements

reflecting the effects of certain subsequent events,

including a discontinued operation, a change in

reportable segments or a change in accounting

principle. (See Regulation S-K Item 601(b)(101)

and SEC CDI Question 101.04.) Companies are

permitted to voluntarily submit interactive data

files with other Form 8-Ks that include financial

statements. Companies cannot, however, use

Form 8-K to correct the initial failure to file an

interactive data file on a separate form, such as a

Form 10-K or Form 10-Q, and must instead file an

amended version of the initial form. (SEC CDI

Question 101.05.)

Refer to Cover Page Tagging above for a

discussion of the requirement to tag the Form 8-K

cover page.

PSLRA Safe Harbor

Whenever a Form 8-K includes forward-looking

statements, the company should include in the

Form 8-K appropriate safe harbor language under

the Private Securities Litigation Reform Act of

1995.

Signature Requirements

Form 8-K is signed on behalf of the company by

any authorized officer.

CEO and CFO Certifications

Form 8-K is not required to include the CEO and

CFO certifications mandated by Section 302 or

Section 906 of the Sarbanes-Oxley Act.

Even though Form 8-Ks are not themselves

required to be certified, as discussed in the section

of this Guide titled “Impact on Controls and

Procedures,” a company’s disclosure controls and

procedures must address the preparation and filing

of Form 8-Ks, and therefore the CEO and CFO

certifications included in Forms 10-K and 10-Q

regarding effectiveness of disclosure controls and

procedures must take into account the company’s

handling of Form 8-Ks.

Amendments

Several Form 8-K Items expressly contemplate a

subsequent amendment of the original filing,

including:

• Item 1.05 (Material Cybersecurity

Incidents) contemplates amendment if any

information required to be disclosed (i.e.,

material aspects of the nature, scope, and

timing of the cybersecurity incident, or the

material impact or reasonably likely material

impact on the company) is not available or

determined at the time of the initial filing.

• Item 2.05 (Costs Associated with Exit or

Disposal Activities) contemplates amendment

if certain estimates of expected costs cannot be

determined at the time of the initial filing.

• Item 2.06 (Material Impairments)

contemplates amendment if certain estimates

of expected costs cannot be determined at the

time of the initial filing.

• Item 4.02 (Non-Reliance on Previously

Issued Financial Statements or a Related

Audit Report or Completed Interim

Review) contemplates amendment to file a

letter from the independent accounting firm if

not included with the initial filing.

• Item 5.02 (a) (Departure of Directors or

Certain Ofﬁcers; Election of Directors;

Appointment of Certain Ofﬁcers;

Compensatory Arrangements of Certain

Ofﬁcers) contemplates amendment to file any

letter received by the company from a

departing director in response to the

company’s disclosures under Item 5.02(a).

• Items 5.02 (c) and (d) (Departure of

Directors or Certain Ofﬁcers; Election of

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 9

Directors; Appointment of Certain Ofﬁcers;

Compensatory Arrangements of Certain

Ofﬁcers) contemplate amendment if certain

information about new officers or directors is

not available at the time of the initial filing.

• Item 5.07(b) (Submission of Matters to a

Vote of Security Holders) contemplates

amendment to report final voting results if

only preliminary results were reported at the

time of the initial filing.

• Item 5.07(d) (Submission of Matters to a

Vote of Security Holders) contemplates

amendment to disclose the company’s decision

regarding the frequency of future shareholder

advisory votes on executive compensation.

• Item 9.01 (Financial Statements and

Exhibits) contemplates amendment to file

required financial statements and pro forma

information in connection with certain

acquisitions.

Amendments to Form 8-K are filed under cover of

a Form 8-K/A. As required by Exchange Act Rule

12b-15, each amendment should be sequentially

numbered and should set forth the complete text of

each item as amended. Amendments are signed on

behalf of the company by any authorized officer.

It is often helpful to include an explanatory note

explaining the purpose of the amendment,

especially when the amendment is being submitted

to correct an error in the original Form 8-K.

Reporting Cybersecurity Incidents When Item

1.05 Materiality Determination Occurs After

Initial Form 8-K Disclosure About the Incident

If a company that previously reported a

cybersecurity incident under Item 7.01 or Item

8.01 later determines that the cybersecurity

incident is material, the company is required to file

a new Form 8-K under Item 1.05 within four

business days of making its materiality

determination. While the new Form 8-K being

filed under Item 1.05 may refer to the original

voluntary Item 7.01 or Item 8.01 filing, the new

Form 8-K must include all of the disclosures

required by Item 1.05.

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 10

Reportable Events

The table on the next page lists all Form 8-K

reportable events and indicates which reportable

events have the benefit of the limited safe harbor

from liability under Section 10(b) of the Exchange

Act and Rule 10b-5 thereunder for failure to file

certain of the required Form 8-K reports and other

special relief, which are discussed in the section of

this Guide titled “Liabilities and Limited Relief.”

Although several of the reportable events only

state that they are triggered by the specified event

occurring in relation to the “registrant,” the SEC

staff has advised that companies should interpret

all Form 8-K items as applying the triggering event

to the company and its subsidiaries, other than

items such as Item 5.02 (Departure of Directors or

Certain Officers; Election of Directors;

Appointment of Certain Officers; Compensatory

Arrangements of Certain Officers) that clearly

apply only at the registrant level. (SEC CDI

Question 101.02.)

The remainder of this section reviews each

reportable event that applies to most operating

companies, with the review divided into three

parts:

• “An 8-K Is Required If” — summarizes the

events that trigger a Form 8-K requirement

under each item, including key defined terms.

• “Required Disclosure” — summarizes the

disclosure that must be included in Form 8-K

under each item. In each case, the company

should keep in mind that, in addition to

providing all information specifically required

by an item, Rule 12b-20 under the Exchange

Act (as well as Section 10(b) of the Exchange

Act and Rule 10b-5 thereunder) requires that

each Form 8-K must also include all other

material information, if any, that is necessary

to make the required disclosure, in light of the

circumstances under which it is made, not

misleading.

• “Practice Tips” — includes suggestions for

complying with the Form 8-K disclosure

requirements and for implementing effective

disclosure controls and procedures. See

“Impact on Controls and Procedures” for more

suggestions on implementing disclosure

controls and procedures. Some of the practice

tips are based on instructions contained in

Form 8-K, some are based on the written

interpretative guidance provided by the staff of

the SEC’s Division of Corporation Finance in

Compliance and Disclosure Interpretations

(“CDIs”) and others represent our

understanding of the disclosure requirements

and how they should generally be applied.

Unless otherwise indicated, the references to

CDIs in this Guide are to the Exchange Act

Form 8-K CDIs Last Update: March 22, 2022

(last checked October 25, 2023). The practice

tips contained in this Guide must be

considered in light of the specific facts and

circumstances of each situation, any

interpretive guidance the SEC provides and

developments in practice that may evolve over

time.

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 11

Form 8-K Item § 10(b)/Rule 10b-5

Safe Harbor

Applies?

Impact on Form

S-3 Eligibility?

Section 1 Registrant’s Business and Operations

Item 1.01 Entry into a Material Definitive Agreement Yes No

Item 1.02 Termination of a Material Definitive Agreement Yes No

Item 1.03 Bankruptcy or Receivership No Yes

Item 1.04 Mine Safety – Reporting of Shutdowns and Patterns of

Violations* No No

Item 1.05 Material Cybersecurity Incidents Yes No

Section 2 Financial Information

Item 2.01 Completion of Acquisition or Disposition of Assets No Yes

Item 2.02 Results of Operations and Financial Condition No No

Item 2.03 Creation of a Direct Financial Obligation or an Obligation

under an Off-Balance Sheet Arrangement of a Registrant Yes No

Item 2.04 Triggering Events that Accelerate or Increase a Direct

Financial Obligation or an Obligation under an Off-

Balance Sheet Arrangement

Yes No

Item 2.05 Costs Associated with Exit or Disposal Activities Yes No

Item 2.06 Material Impairments Yes No

Section 3 Securities and Trading Markets

Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing

Rule or Standard; Transfer of Listing No Yes

Item 3.02 Unregistered Sales of Equity Securities No Yes

Item 3.03 Material Modification to Rights of Security Holders No Yes

Section 4 Matters Related to Accountants

and Financial Statements

Item 4.01 Changes in Registrant’s Certifying Accountant No Yes

Item 4.02 Non-Reliance on Previously Issued Financial Statements

or a Related Audit Report or Completed Interim Review Yes (only for a

company

determination)

No (otherwise)

No (only for a

company

determination)

Yes (otherwise)

Section 5 Corporate Governance and Management

Item 5.01 Changes in Control of Registrant No Yes

Item 5.02 Departure of Directors or Certain Officers; Election of

Directors; Appointment of Certain Officers; Compensatory

Arrangements of Certain Officers

No (Items 5.02(a)-

(d) and (f))

Yes (Item 5.02(e)

only)

Yes (Items 5.02

(a)-(d) and (f))

No (Item 5.02(e)

only)

Item 5.03 Amendments to Articles of Incorporation or Bylaws;

Change in Fiscal Year No Yes

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 12

Form 8-K Item § 10(b)/Rule 10b-5

Safe Harbor

Applies?

Impact on Form

S-3 Eligibility?

Item 5.04 Temporary Suspension of Trading under Registrant’s

Employee Benefit Plans No Yes

Item 5.05 Amendments to the Registrant’s Code of Ethics, or Waiver

of a Provision of the Code of Ethics No Yes

Item 5.06 Change in Shell Company Status* No Yes

Item 5.07 Submission of Matters to a Vote of Security Holders No Yes

Item 5.08 Shareholder Director Nominations No Yes

Section 6 Asset-Backed Securities*

Item 6.01 ABS Informational and Computational Material* No Yes

Item 6.02 Change of Servicer or Trustee* No Yes

Item 6.03 Change in Credit Enhancement or Other External

Support* Yes Yes

Item 6.04 Failure to Make a Required Distribution* No Yes

Item 6.05 Securities Act Updating Disclosure* No Yes

Section 7 Regulation FD

Item 7.01 Regulation FD Disclosure No No

Section 8 Other Events

Item 8.01 Other Events No No

Section 9 Financial Statements and Exhibits

Item 9.01 Financial Statements and Exhibits No Yes (if required

to be filed)

*This Guide does not address these items.

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 13

Item 1.01

Entry into a Material Definitive Agreement

An 8-K Is Required If:

• The company has entered into a “material

definitive agreement” that is “not made in the

ordinary course of business”

• The company has entered into any amendment

of a material definitive agreement not made in

the ordinary course of business and such

amendment is material to the company

• The company succeeds as a party to a material

definitive agreement not made in the ordinary

course of business, or an amendment to such an

agreement that is material to the company, by

assumption or assignment (other than in

connection with a merger, acquisition or similar

transaction)

A “material definitive agreement” means an

agreement that provides for obligations that are

material to and enforceable against the company, or

rights that are material to the company and

enforceable by the company against one or more

other parties to the agreement, even if subject to

conditions.

Pursuant to the instructions to this item, the

determination of whether an agreement is “not

made in the ordinary course of business” generally

makes use of the Regulation S-K Item 601(b)(10)

definition of a material contract, which is used to

determine which agreements must be filed as

exhibits to the company’s periodic reports and

registration statements.

However, compensatory plans, contracts and

arrangements covering directors and executive

officers under Item 601(b)(10)(iii)(A), and equity

plans, contracts and arrangements adopted without

stockholder approval as described in Item

601(b)(10)(iii)(B), are not considered “material

definitive agreements” for purposes of Item 1.01,

even though they fall within the definition of

material contract for purposes of Regulation S-K

Item 601(b)(10). While disclosure of compensatory

plans, contracts or arrangements covering executive

officers is not required under Item 1.01, such

disclosure may be required under Item 5.02(e).

Applying the standards in Item 601(b)(10) of

Regulation S-K, an agreement will be deemed to be

“not made in the ordinary course of business” if,

among other things:

− The company’s business is substantially

dependent on the agreement

− The agreement calls for the acquisition or

sale of any property, plant or equipment for

a consideration exceeding 15% of such

fixed assets of the company on a

consolidated basis

− The agreement is a material lease of

property

− A director or officer is a party to the

agreement, other than compensatory

arrangements and contracts involving a

purchase or sale of current assets having a

determinable market price at such market

price

Required Disclosure:

• Date of agreement or amendment

• Identity of the parties to the agreement or

amendment

• Brief description of any other material

relationship between the company (or its

affiliates) and any of the parties

• Brief description of the terms and conditions of

the agreement or amendment that are material

to the company

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 14

Practice Tips:

A. Practice Tips – Required Brief Summary:

1. An agreement or amendment that triggers this

item must be summarized in the body of the

Form 8-K even if it is filed as an exhibit to the

Form 8-K. Incorporation by reference of the

actual agreement or amendment does not satisfy

the requirement to provide a brief description of

the material terms and conditions of the

agreement or amendment. (SEC CDI Question

102.03.)

2. While Item 1.01 requires a brief description of

the agreement or amendment, the SEC staff has

acknowledged that in some cases, the agreement

or amendment may be so brief that it may make

sense to disclose all of its terms in the body of

the Form 8-K. (SEC CDI Question 102.03.)

3. If the company plans to redact any portion of the

agreement or amendment that triggers this item

because the company customarily and actually

treats the redacted information as private or

confidential and such information is not material,

the company should identify the portions of the

agreement that it plans to redact before filing the

Form 8-K in order to avoid accidentally

including that information as part of the required

“brief description.”

4. Where material, the brief description of terms

and conditions required by this item would

generally include each party’s rights and

obligations, the duration of the agreement, and

the termination provisions.

5. Although the materiality of terms or conditions

of a business combination agreement, such as a

merger agreement, depends on the particular

facts and circumstances, the following terms are

often viewed as material and disclosed in the

Form 8-K:

• the amount and nature of consideration

offered for the business combination (or

the method, exchange ratio, or formula

for determining the consideration);

• any committed financing arrangements

(e.g., PIPE investments), or the need for

financing to close the business

combination transaction, along with the

material terms of such arrangements;

• any material terms regarding the

securities ownership or management

structure of the combined or surviving

company after the closing of the

business combination transaction;

• any material conditions to the closing of

the transaction; and

• the anticipated timeframes for filing any

Securities Act registration statement,

proxy or information statement, or

tender offer materials, as well as for the

closing of the business combination

transaction.

In addition, additional disclosure such as the

following may be needed to make sure the

disclosures aren’t misleading:

• if a material term of the agreement has not

yet been determined by the parties, the

Form 8-K should affirmatively state so; and

• in the case where the registrant is the

acquiror, the Form 8-K should briefly

describe the nature of the target company’s

business, including, at a minimum, whether

it has existing operations or has generated

revenues, as well as any information

disclosed by the target company in

announcing the business combination

transaction. (SEC CDI Question 102.04.)

6. If the company determines that a placement

agency or underwriting agreement constitutes a

material definitive agreement subject to filing

under this item, the company is permitted to omit

the identity of the underwriters from its Form 8-

K in order to remain within the safe harbor from

the definition of an “offer” included in Securities

Act Rule 135c. (SEC CDI Question 102.02.)

B. Practice Tips – Exhibit Filing:

1. A copy of the actual agreement or amendment

that triggers an Item 1.01 Form 8-K is not

required to be filed as part of the Form 8-K.

Instead, the agreement or amendment must be

filed as an exhibit to the Form 10-K or Form 10-

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 15

Q covering the reporting period in which the

agreement was executed or became effective.

(SEC CDI Question 202.01.)

2. Although filing a copy of the agreement or

amendment with the Form 8-K is not required

and will not eliminate the requirement to include

a “brief description” in the Form 8-K, in certain

cases the company will find it advantageous to do

so. Filing the actual agreement or amendment

with the Form 8-K may reduce the risk of the

company being second-guessed regarding the

adequacy of its brief description.

3. Since the instructions to Form 8-K have been

amended to allow companies to redact sensitive

terms in a material definitive agreement without

submitting a confidential treatment request, and

since it should generally be feasible to prepare

the agreement in proper EDGAR format within

the required timeframe for filing an Item 1.01

Form 8-K, the SEC staff encourages companies

to file any business combination agreement that

is reported under Item 1.01 of Form 8-K as an

exhibit to such Form 8-K. (SEC CDI Question

102.05.)

C. Practice Tips – Covered Agreements

and Amendments:

1. This item applies to both written and unwritten

material definitive agreements. In the case of an

oral agreement, when the time comes to file the

agreement as an exhibit (either with the Form 8-

K or with a subsequent Form 10-Q or Form 10-

K), the company must provide a written

description of the oral agreement as the exhibit.

2. Disclosure of a material amendment may be

required even if the underlying agreement has not

been disclosed previously by the company (for

example, because the amendment results in the

agreement becoming material for the first time).

3. If a company enters into an immaterial

amendment to a material definitive agreement, a

Form 8-K will not be required under this item.

However, the amendment, even though

immaterial, will generally need to be filed as an

exhibit to the Form 10-K or Form 10-Q covering

the period in which the amendment was executed

or became effective under Item 601(a)(4) of

Regulation S-K.

4. An agreement is “definitive” for purposes of

applying the definition of “material definitive

agreement” even if it is subject to conditions.

The company should assume that a Form 8-K

filing will be required even for an agreement that

is subject to significant conditions such as the

receipt of board approval.

5. When an agreement that was not material at the

time it was initially entered into subsequently

becomes material (for example because of a

change in business circumstances, but not

because of an amendment to the agreement), a

Form 8-K will not need to be filed under this

item. However, such a material agreement must

be filed as an exhibit to the Form 10-Q or Form

10-K that the company files for the reporting

period in which the agreement became material.

(SEC CDI Question 102.01.)

6. The company does not need to disclose under this

item its entry into non-binding agreements, such

as letters of intent. However, if a non-binding

letter of intent contains some binding provisions,

those provisions must be analyzed under the

“material definitive agreement” definition.

Binding provisions such as a confidentiality

provision or a short exclusivity provision in an

otherwise non-binding letter of intent relating to

a potential M&A transaction will not generally

be viewed as material and therefore would not

trigger a Form 8-K requirement. However, more

extensive binding provisions in an otherwise non-

binding letter of intent (such as a termination fee)

would, if material, trigger a Form 8-K filing

obligation.

7. Entry by a subsidiary into a material definitive

agreement not made in the ordinary course of

business that is material to the company is

reportable under this item. (SEC CDI Question

101.02.)

8. If a material definitive agreement (the

termination of which would be material to the

company) automatically renews unless one of the

parties sends a non-renewal notice during a

specified window of time, no new Form 8-K

under Item 1.01 is required if the agreement

automatically renews. (SEC CDI Question

103.02.)

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 16

D. Practice Tips – Other:

1. A company may omit the Item 1.01 heading in a

Form 8-K that also discloses any other item, so

long as the substantive disclosure required by

Item 1.01 is included in the Form 8-K. This does

not extend to allowing a company to omit any

other caption if the Item 1.01 caption is included.

2. The exclusion of compensatory arrangements

from this item does not change the exhibit

requirement for such arrangements for purposes

of Form 10-Q or Form 10-K. As a result, a

company remains obligated to file as an exhibit

to its Form 10-Q or Form 10-K any plan, contract

or arrangement covered by Item 601(b)(10)(iii)

of Regulation S-K. As discussed above, a Form

8-K filing may also be required under Item

5.02(e).

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 17

Item 1.02

Termination of a Material Definitive Agreement

An 8-K Is Required If:

• A material definitive agreement not made in the

ordinary course of business is terminated and

such termination is material to the company

A Form 8-K is not required where the termination is

due to expiration of the agreement on its stated

termination date or as a result of all parties

completing their obligations under the agreement.

“Material definitive agreement” has the same

meaning as under Item 1.01.

Required Disclosure:

• Date of termination

• Identity of parties

• Brief description of any other material

relationship between the company (or its

affiliates) and any of the parties

• Brief description of the terms and conditions of

the agreement that are material to the company

• Brief description of the material circumstances

surrounding the termination

• Any material early termination penalties

incurred by the company

Practice Tips:

1. A Form 8-K is required under this item

regardless of whether it is the company or the

other party to the agreement that is triggering the

termination.

2. Instruction 1 to this item provides that no Form

8-K is required solely by reason of this item

during negotiations or discussions regarding

termination unless and until the agreement has

been terminated. However, once notice of

termination pursuant to the terms of the

agreement has been received, a Form 8-K is

required, even if the termination is not scheduled

to occur for an extended period of time and

notwithstanding any continuing efforts by the

company to negotiate a continuation of the

agreement. (SEC CDI Question 103.01.)

3. Although Instruction 2 to this item provides that

no Form 8-K is required solely by reason of this

item if the company believes in good faith that

the agreement has not been terminated, the

company cannot have such a good faith belief

after the company receives a notice of

termination pursuant to the terms of the

agreement. Where the company believes a notice

of termination is incorrect or invalid, depending

on the circumstances, the proper course of action

may likely be to file a Form 8-K and explain the

basis for the company’s belief that the purported

notice of termination is incorrect or invalid.

4. When drafting new agreements, the company

should pay extra attention to how termination and

cure periods interact. The company should avoid

situations where a “notice of termination” is used

to start the running of a cure period, since receipt

of a notice of termination triggers a Form 8-K

requirement. Instead, the company should

provide for a notice of breach, which, if not

cured, would entitle the party to deliver a notice

of termination after the expiration of the cure

period.

5. If a material definitive agreement (the

termination of which would be material to the

company) automatically renews unless one of the

parties sends a non-renewal notice during a

specified window of time:

• if one of the parties sends a notice of non-

renewal, a Form 8-K is required under this

item within four business days of such

notice; but

• if the agreement automatically renews, no

new Form 8-K under Item 1.01 is required.

(SEC CDI Question 103.02.)

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 18

6. If a material definitive agreement with a stated

expiration date (the termination of which would

be material to the company) provides that either

party may renew the agreement by sending a

renewal notice during a specified window of

time, provided the other party does not

affirmatively reject that notice:

• if neither party sends a renewal notice (and

the agreement, therefore, terminates on its

stated expiration date), no Form 8-K would

be required under this item; but

• if one party sends a renewal notice which is

not rejected, a Form 8-K would be required

under Item 1.01 within four business days

after the expiration of the period of time in

which a rejection notice could have been

given. (SEC CDI Question 103.03.)

7. Each year, the company should carefully review

the list of material contracts included in its Form

10-K and delete those agreements that are no

longer material. Since the Form 10-K exhibit list

is one way by which the materiality of

agreements will be assessed, keeping the Form

10-K list up to date will avoid situations where

the company feels obligated to file a Form 8-K

under this item with respect to an agreement that

is listed in the most recent Form 10-K, but is no

longer material.

8. Termination by a subsidiary of a material

definitive agreement not made in the ordinary

course of business that is material to the

company is reportable under this item. (SEC

CDI Question 101.02.)

9. Because Item 1.02 uses the same definition of

“material definitive agreement” as set forth in

Item 1.01, this item does not require a Form 8-K

filing as a result of the termination of

compensatory arrangements with officers or

directors. Termination of a compensatory

arrangement with certain officers may, however,

trigger a Form 8-K filing requirement under Item

5.02(e).

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 19

Item 1.03

Bankruptcy or Receivership

An 8-K Is Required If:

• A receiver, fiscal agent or similar officer has

been appointed for the company (or its parent)

in a proceeding under the U.S. Bankruptcy

Code or in any other proceeding under state or

federal law in which a court or governmental

authority has assumed jurisdiction over

substantially all of the assets or business of the

company (or its parent), or if such jurisdiction

has been assumed by leaving the existing

directors and officers in possession but subject

to the supervision and orders of a court or

governmental authority

• An order confirming a plan of reorganization,

arrangement or liquidation has been entered by

a court or governmental authority having

supervision or jurisdiction over substantially all

of the assets or business of the company (or its

parent)

Required Disclosure:

• For bankruptcy proceedings:

− the name or other identification of the

proceeding

− the identity of the court or governmental

authority

− the date that jurisdiction was assumed

− the identity of the receiver, fiscal agent or

similar officer and the date of his or her

appointment

• For a reorganization, arrangement or

liquidation order:

− the identity of the court or governmental

authority

− the date that the order confirming the plan

was entered by the court or governmental

authority

− a summary of the material features of the

plan and, pursuant to Item 9.01 (Financial

Statements and Exhibits), a copy of the

plan as confirmed

− the number of shares or other units of the

company (or its parent) issued and

outstanding, the number reserved for future

issuance in respect of claims and interests

filed and allowed under the plan, and the

aggregate total of such numbers

− information as to the assets and liabilities

of the company (or its parent) as of the date

that the order confirming the plan was

entered, or a date as close thereto as

practicable

Practice Tip:

1. The information as to the assets and liabilities of

the company (or its parent) may be presented in

the form in which it was furnished to the court or

governmental authority.

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 20

Item 1.05

Material Cybersecurity Incidents*

An 8-K Is Required If:

• The company experiences a cybersecurity

incident that is determined by the company to

be material

“Cybersecurity incident” means an unauthorized

occurrence, or a series of related unauthorized

occurrences, on or conducted through a company’s

information systems that jeopardizes the

confidentiality, integrity, or availability of a

company’s information systems or any information

residing therein.

“Information systems” means electronic

information resources, owned or used by the

company, including physical or virtual

infrastructure controlled by such information

resources, or components thereof, organized for the

collection, processing, maintenance, use, sharing,

dissemination, or disposition of the company’s

information to maintain or support the company’s

operations.

Potential for Delayed Disclosure:

A Form 8-K is not required to be filed within four

business days, if:

• The United States Attorney General (“USAG”)

determines that the required disclosure poses a

substantial risk to national security or public

safety, and notifies the SEC of such

determination in writing. If that notification is

made, the company may delay providing the

required disclosure for the time period specified

by the USAG, up to 30 days. Disclosure may be

delayed for up to an additional 30 days if the

USAG determines that disclosure continues to

pose a substantial risk to national security or

public safety and notifies the SEC in writing. In

extraordinary circumstances, disclosure may be

delayed for a final additional period of up to 60

days if the USAG determines that disclosure

continues to pose a substantial risk to national

security (but not public safety) and notifies the

SEC of such determination in writing. Beyond

the final 60-day delay, if the USAG indicates that

further delay is necessary, the SEC will consider

additional requests for delay and may grant such

relief through SEC exemptive order. Separately,

note that Exchange Act Rule 0-6, which provides

for the omission of information that has been

classified by an appropriate department or agency

of the Federal Government for the protection of

the interest of national defense or foreign policy,

remains available.

• The data breach involves CPNI that must be

disclosed pursuant to certain rules of the FCC.

Specifically, companies covered by 47 C.F.R. §

64.2011 are required to notify the United States

Secret Service (the “USSS”) and Federal Bureau

of Investigation (“FBI”) no later than seven

business days after reasonable determination of a

CPNI breach and to refrain from notifying

customers or disclosing the breach publicly until

seven business days after the USSS and FBI were

notified. In light of the timelines established by

FCC rules, Item 1.05 allows a delay in filing a

Form 8-K up to seven days after the USSS and

FBI are notified of a data breach involving CPNI,

provided that written notification is given to the

SEC by the date disclosure required by Item 1.05

was otherwise required to be made.

Required Disclosure:

• Material aspects of the nature, scope, and

timing of the cybersecurity incident

• Material impact or reasonably likely material

impact of the cybersecurity incident on the

company, including its financial condition and

results of operations

Whenever a company determines information

required to be disclosed under Item 1.05 is not

available or determined at the time of the required

filing, the company must (i) include a statement to

this effect in its Item 1.05 Form 8-K and (ii) within

four business days after the company, without

unreasonable delay, determines such information or

such information becomes available, file an

amendment to the initial Item 1.05 Form 8-K.

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 21

SEC Staff Statements and Comment Letters

Addressing Item 1.05 Disclosure

Requirements:

On May 21, 2024, Erik Gerding, Director of the

SEC’s Division of Corporation Finance, issued a

statement regarding the disclosure of cybersecurity

incidents on Form 8-K (the “May 2024 Statement”).

In the May 2024 Statement, Director Gerding

encourages companies that voluntarily choose to

disclose a cybersecurity incident that has not been

determined to be material, or for which no

materiality determination has yet been made, to

make that disclosure using a Form 8-K item other

than Item 1.05 (Material Cybersecurity Incidents).

For example, companies may voluntarily provide

the disclosure under Item 7.01 (Regulation FD

Disclosure) or Item 8.01 (Other Events).

The May 2024 Statement provides clarification for

situations where an incident is disclosed voluntarily,

for example under Item 8.01, but then later is

determined to be material. In that circumstance,

companies must file an Item 1.05 8-K within four

business days of their materiality determination.

While this Item 1.05 8-K may refer to the original

Item 8.01 8-K, it must include all of the disclosures

required by Item 1.05.

Director Gerding also issued a statement on June

20, 2024 offering clarification of the interplay

between Item 1.05 and Regulation FD (the “June

2024 Statement”). The June 2024 Statement

confirms that, subject to compliance with

Regulation FD (when it is applicable), Item 1.05

does not prohibit a company from discussing a

material cybersecurity incident with others,

including providing information about an incident

reported under Item 1.05 that goes beyond what was

included in an Item 1.05 Form 8-K. Director

Gerding specifically states that those other parties

may include commercial counterparties, such as

vendors and customers, as well as other companies

that may be impacted by, or at risk from, the same

incident or threat actor. The June 2024 Statement

further details the ways in which companies can

disclose information about a cybersecurity incident

without violating Regulation FD, including, for

example, when disclosures are to parties who are

not subject to Regulation FD or have provided an

assurance of confidentiality or have a duty of

confidentiality.

Consistent with the May 2024 Statement, the SEC

staff in several comment letters asked Item 1.05

filers who disclaimed materiality or otherwise failed

to disclose material impacts to explain why they

had filed under Item 1.05 and to disclose all actual

or reasonably likely material impacts. The staff

noted that companies should consider both

quantitative and qualitative factors in determining

material impacts, including impacts to vendor,

customer, and business partner relationships,

competitiveness and reputational harm.

Practice Tips:

1. Disclosure is required under Item 1.05 only if the

company determines that the cybersecurity

incident it experienced is material. Whether a

cybersecurity incident is material is to be

analyzed under the traditional securities law

definition of materiality, considering both

qualitative and quantitative factors. See

“Assessing the Materiality of a Cybersecurity

Incident” below.

2. A company’s materiality determination must be

made without unreasonable delay after discovery

of the cybersecurity incident. (Instruction 1 to

Item 1.05.) The adopting release includes

examples of what would constitute “unreasonable

delay,” including when intentionally delaying a

board or committee meeting on the materiality

determination past the normal time it takes to

convene its members, or revising policies and

procedures to delay a determination by extending

the company’s incident severity assessment

deadlines.

3. A company may voluntarily disclose a

cybersecurity incident under Item 7.01 or Item

8.01 before determining the incident to be

material. If the company subsequently

determines the incident to be material, it must file

a new Form 8-K under Item 1.05 within four

business days of the materiality determination.

4. Reference in the definition of “cybersecurity

incident” to a “series of related unauthorized

occurrences” reflects the SEC’s view that the

term cybersecurity incident should be viewed

broadly.

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 22

5. Because the definition of “information systems”

covers electronic information resources “owned

or used by the registrant,” a company is required

to disclose a cybersecurity incident suffered by a

third-party service provider’s system if that

incident has a material impact on the company.

Depending on the circumstances of a

cybersecurity incident involving a third-party

service provider, disclosures may be required by

either or both of the service provider and its

customer.

6. Notwithstanding the obligation to report on third-

party systems that experience a cybersecurity

incident that materially impacts a company, the

SEC noted in the adopting release that companies

need only disclose information made available to

them, and are generally not required to conduct

additional inquiries beyond their regular

communications with third-party service

providers and in accordance with the company’s

disclosure controls and procedures.

7. When providing disclosure, a company “need not

disclose specific or technical information about

its planned response to the incident or its

cybersecurity systems, related networks and

devices, or potential system vulnerabilities in

such detail as would impede the company’s

response or remediation of the incident.”

(Instruction 4 to Item 1.05.) However, the

adopting release states that “some incidents may

still necessitate, for example, discussion of data

theft, asset loss, intellectual property loss,

reputational damage, or business value loss.”

8. While the materiality of a cybersecurity incident

is being assessed, companies should consider

whether trading windows should be closed.

9. The SEC staff’s 2011 guidance (“2011 Staff

Guidance”) and the Commission’s 2018

Interpretive Release (“2018 Interpretive

Guidance”) remain applicable and should be used

to inform potential disclosure obligations relating

to cybersecurity incidents that are not specifically

addressed by Item 1.05 or the new annual

cybersecurity disclosures called for by Item 106

of Regulation S-K (which was added at the same

time as Item 1.05).

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 23

Assessing the Materiality of a Cybersecurity Incident

Disclosure of a cybersecurity incident is required under Item 1.05 of Form 8-K only if the company determines

that the cybersecurity incident it experienced is “material.” Whether a cybersecurity incident is “material” is to

be analyzed under the traditional securities law definition of materiality, meaning an incident is material if

“there is a substantial likelihood that a reasonable shareholder would consider it important” in making an

investment decision, or if it would have “significantly altered the ‘total mix’ of information made available.”

Registrants must consider both qualitative and quantitative factors when assessing the materiality of a

cybersecurity incident. Informed in part by commentary in the adopting release (some of which was

highlighted again in Director Gerding’s May 2024 Statement and SEC comment letters regarding Item 1.05

filings), as well as by our experience helping companies evaluate disclosure obligations under the 2011 Staff

Guidance and 2018 Interpretive Guidance, below are some of the factors companies may generally want to

consider when evaluating the materiality of a cybersecurity incident.

Quantitative

Considerations

Qualitative Considerations

Considerations That

Will Not be Relevant

– Reasonably expected

percentage impact on revenue

due to lost sales of products

or services

– Reasonably expected

percentage impact on net

income due to lost revenues,

expenses associated with

containing and remediating

the incident (including, as

applicable, any ransom

payment) and other expected

expenses (including

responding to regulatory and

legal proceedings and any

voluntary actions to mitigate

harm to affected individuals)

– Reasonably expected

percentage impact on total

and current assets of expenses

associated with the incident

– Relative importance of the systems affected by the incident

to the registrant’s operations (including how long those

systems may be inoperable)

- Duration of the incident, method of incident detection and

readiness of the response to halt the incident

– Ability to restore affected systems and the expected

integrity of those systems once restored

– Nature and scope/magnitude of the information that has

been improperly accessed or exfiltrated

– Effect of the incident on key systems or information that

the registrant considers its “crown jewels”

– Harm to the registrant’s reputation and brand perception

– Impact on the registrant’s supply chain and operations,

including likelihood of consequential harms resulting from

delays or other effects of the incident

– Impact on relationships with customers (both near-term

and over time)

– Impact on relationships with suppliers and other business

partners (both near-term and over time)

– Effect on the registrant’s competitive position relative to its

peers (both near-term and over time)

– Likelihood of regulatory actions by various governmental

authorities

– Likelihood of private litigation from individuals whose

information has been compromised

– Whether the affected

system was owned or

operated by the registrant or

a third-party

– Inability to determine the

full extent of the incident

– Ongoing nature of the

registrant’s internal

investigation

– Timing of sharing

information about the

incident with governmental

authorities or others

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 24

Item 2.01

Completion of Acquisition or Disposition of

Assets

An 8-K Is Required If:

• The company or any of its consolidated

subsidiaries has completed the acquisition or

disposition of a significant amount of assets,

otherwise than in the ordinary course of

business, or a significant amount of assets that

constitute a real estate operation

An “acquisition” includes every purchase,

acquisition by lease, exchange, merger,

consolidation, succession or other acquisition. The

term does not include the construction or

development of property by or for the company or

its subsidiaries or the acquisition of materials for

such purpose.

A “disposition” includes every sale, disposition by

lease, exchange, merger, consolidation, mortgage,

assignment or hypothecation of assets, whether for

the benefit of creditors or otherwise, abandonment,

destruction, or other disposition. An indefinite

closing of a portion of the company’s facilities,

coupled with a write-down of its assets in excess of

10%, constitutes an “other disposition” that must be

reported under this item. (SEC CDI Question

205.04.) The term “disposition” includes a

requirement to deconsolidate a subsidiary.

(Section 2110.1 of the SEC Division of Corporation

Finance’s Financial Reporting Manual)

The acquisition or disposition of securities is

deemed the indirect acquisition or disposition of the

assets represented by such securities if it results in

the acquisition or disposition of control of such

assets.

Instruction 4 to Item 2.01 provides that an

acquisition or disposition is deemed to involve a

“significant amount of assets” if:

− clause (i): the company’s and its other

subsidiaries’ equity in the net book value of

such assets or the amount paid or received

for the assets upon such acquisition or

disposition exceeded 10% of the total

assets of the company and its consolidated

subsidiaries; or

− clause (ii): it involved a “business” that is

“significant” as such terms are defined in

Rule 11-01 of Regulation S-X.

When an acquisition or a disposition involves a

“business” (not just assets), you determine whether

an Item 2.01 8-K is required solely by applying the

20% significance tests referenced in clause (ii) to

Instruction 4. The 10% tests contained in clause (i)

to Instruction 4 are inapplicable to an acquisition or

a disposition of a “business.”

The acquisition of a “business” encompasses the

acquisition of an interest in a business accounted for

by the registrant under the equity method or, in lieu

of the equity method, the fair value option.

While an Item 2.01 Form 8-K is not required until

the acquisition has been completed, certain acquiree

historical and pro forma financial statements may

be required in connection with registration

statements under the Securities Act for acquisitions

that are probable but not yet completed; companies

may voluntarily file these Item 9.01 exhibits on a

Form 8-K prior to completion of the acquisition.

Required Disclosure:

• Date of completion of the transaction

• Brief description of the assets involved

• Identity of the person from whom the assets

were acquired or to whom they were sold and

the nature of any other material relationship

between such person and the company or any

of its affiliates, or any director or officer of the

company, or any associate of any such director

or officer

• Nature and amount of consideration given or

received for the assets and, if any material

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 25

relationship between the parties is disclosed,

the formula or principle followed in

determining the amount of such consideration

• If the transaction being reported is an

acquisition and if a material relationship exists

between the company (or any of its affiliates)

and the source of the funds used in the

acquisition, the identity of the source of the

funds unless all or any part of the consideration

used is a loan made in the ordinary course of

business by a bank (as defined by Section

3(a)(6) of the Exchange Act), in which case the

identity of such bank may be omitted in certain

circumstances

• The following items are required to be filed as

exhibits:

− financial statements of businesses acquired

as set out in Item 9.01 of Form 8-K;

− pro forma financial information as set out

in Item 9.01 of Form 8-K; and

− copies of the plans of acquisition or

disposition

Practice Tips:

1. Disclosure under this item is required only when

a covered acquisition or disposition is

consummated. Execution of an acquisition or

disposition agreement is not reportable under

Item 2.01, but may be reportable under Item 1.01.

(SEC CDI Question 205.01.)

2. Not every material definitive agreement relating

to an acquisition or disposition that is required to

be filed under Item 1.01 will trigger a filing

obligation under this item, because this item

contains bright-line tests of significance that are

not included in Item 1.01.

3. No information need be given as to:

− any transaction between any person and

any wholly owned subsidiary of such

person;

− any transaction between two or more

wholly owned subsidiaries of any person;

− the redemption or other acquisition of

securities from the public, or the sale or

other disposition of securities to the public,

by the company of such securities or by a

wholly owned subsidiary of that company;

however, this does not apply to the sale of a

subsidiary’s equity, because the subsidiary

would not be wholly owned after the

transaction is completed. (SEC CDI

Question 205.05.)

4. The aggregate impact of acquired businesses are

not required to be reported pursuant to this item

unless they are related businesses or related real

estate operations and are significant in the

aggregate. (Instruction 4 to Item 2.01.)

5. The purchase by a reporting company of a

minority stock interest in a business from an

independent third party (which is accounted for

under the cost method) would not require the

filing of the financial statements of that business

with any Form 8-K filed to report the transaction,

so long as that minority position did not result in

the reporting company’s control of the assets.

(SEC CDI Question 205.02.)

6. Where a wholly owned subsidiary that is itself a

reporting company acquires a significant amount

of assets from its parent, Instruction 1 to Item

2.01 of Form 8-K would require the subsidiary,

but not the parent, to file the Form 8-K. (SEC

CDI Question 205.03.)

7. Item 2.01 refers to acquisitions or dispositions by

“the registrant or any of its majority-owned

subsidiaries.” Because this reference preceded

adoption of the variable interest entity

consolidation model, the SEC staff has taken the

position that the intent of this reference is to

require reporting of significant acquisitions and

dispositions made by the registrant or its

consolidated subsidiaries, regardless of whether

the consolidated subsidiaries are voting interest

entities or variable interest entities. (Note to

Section 2005.8 of the SEC Division of

Corporation Finance’s Financial Reporting

Manual)

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 26

8. The SEC staff takes the position that the age of

financial statements in a Form 8-K should

generally be determined by reference to the filing

date of the Form 8-K initially reporting

consummation of the acquisition. (Sections

2045.13 and 2045.17 of the SEC Division of

Corporation Finance’s Financial Reporting

Manual)

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 27

Item 2.02

Results of Operations and Financial Condition

An 8-K Is Required If:

• A company, or any person acting on its behalf,

makes any public announcement or release

(including any update of an earlier

announcement or release) disclosing material

non-public information regarding the

company’s results of operations or financial

condition for a completed quarterly or annual

fiscal period

A Form 8-K is not required to be furnished to the

SEC under this item in the case of disclosure of

material non-public information that is disclosed

orally, telephonically, by webcast, by broadcast or

by similar means if:

− the information is provided as part of a

presentation that is complementary to, and

initially occurs within 48 hours after, a

related, written announcement or release

that has been furnished on Form 8-K

pursuant to this item prior to the

presentation;

− the presentation is broadly accessible to the

public by dial-in conference call, by

webcast, by broadcast or by similar means;

− the financial and other statistical

information contained in the presentation is

provided on the company’s website,

together with any information that would

be required under Regulation G; and

− the presentation was announced by a

widely disseminated press release, which

included instructions as to when and how

to access the presentation and the location

on the company’s website where the

information would be available.

Required Disclosure:

• Date of the announcement or release

• Brief identification of the announcement or

release

• Text of that announcement or release as an

exhibit to the Form 8-K

Practice Tips:

1. If the Form 8-K being furnished pursuant to this

item includes any non-GAAP financial measures,

then the company must also comply with both:

− Regulation G; and

− some, but not all, of the stricter

requirements of Item 10(e) of Regulation

S-K, which applies whenever non-GAAP

financial measures are included in an SEC

filing.

Under Regulation G, whenever a public

company publicly discloses material

information that includes a non-GAAP

financial measure, that non-GAAP financial

measure must be accompanied by:

− a presentation of the most directly

comparable GAAP financial measure;

− a reconciliation, by schedule or other

clearly understandable method, of the non-

GAAP financial measure to the most

directly comparable GAAP financial

measure (this reconciliation must be

quantitative for historic measures, but may

be qualitative for forward-looking

information if a quantitative reconciliation

would not be available without an

unreasonable effort); and

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 28

− such other information as is necessary to

prevent the non-GAAP financial measure

from being untrue or misleading.

In addition to the requirements of Regulation

G, Item 10(e)(1)(i) of Regulation S-K requires

a company using non-GAAP financial

measures in any disclosure that is furnished to

the SEC under this item of Form 8-K to

provide:

− a presentation, with equal or greater

prominence, of the most directly

comparable GAAP financial measure;

− the same reconciliation required by

Regulation G;

− an explanation of why the company’s

management believes the non-GAAP

financial measure provides useful

information to investors regarding the

company’s financial condition and results

of operations; and

− to the extent material, a statement

disclosing the additional purposes, if any,

for which the company’s management uses

the non-GAAP financial measures.

The SEC staff has been very focused on

compliance with the equal or greater

prominence requirement.

2. This Form 8-K requirement is only triggered by

the public disclosure of material non-public

information regarding a completed fiscal year or

quarter. Public disclosure of earnings guidance

for fiscal periods that have not ended would not

itself trigger the Form 8-K requirement.

However, if that guidance is included in an

announcement regarding a completed annual or

quarterly period (for example, when Q2 guidance

is included in an earnings release announcing Q1

results), then the guidance will be part of the

document that must be furnished under Item

2.02.

3. If a company issues an earnings pre-

announcement or warning prior to the end of the

quarter, this item is not triggered. However, if

the earnings pre-announcement or warning is

issued after the end of the quarter, a Form 8-K

would be required under this item. (SEC CDI

Question 106.06.) A “preliminary” earnings

release after quarter-end, even if it only contains

estimates, will also trigger a Form 8-K under this

item. (SEC CDI Question 106.07.)

4. The 48-hour safe harbor is construed literally and

is not the equivalent of two business or calendar

days. (SEC CDI Question 206.01.)

5. Be careful about the language used to refer to any

exhibits furnished under this item so that the

company does not unintentionally change the

status of the exhibit from being furnished to

being filed.

6. When preparing registration statements that

incorporate by reference prior Exchange Act

filings, be careful not to unintentionally

incorporate by reference any Form 8-Ks that

were furnished under this item.

7. Item 2.02 contains a conditional exemption from

its requirement to furnish a Form 8-K where

earnings information is presented orally,

telephonically, by webcast, by broadcast or by

similar means. Among other conditions, the

company must provide on its website any

material financial and other statistical

information not previously disclosed and

contained in the presentation, together with any

information that would be required by Regulation

G. This information must appear on the

company’s website at the time the oral

presentation is made. Where the previously

undisclosed information is disclosed

unexpectedly in connection with the question-

and-answer session that was part of that oral

presentation, the information must be posted on

the company’s website promptly after it is

disclosed. A webcast of the oral presentation is

sufficient. (SEC CDI Question 106.03.) An

audio file of the webcast is sufficient if investors

can access the audio file and replay it through the

company’s website. Slides or a similar

presentation posted on the website are also

sufficient. (SEC CDI Question 106.01.)

8. Where a company is unable to furnish its

earnings release on a Form 8-K before its

conference call, the company must furnish an

exhibit to a Form 8-K with the material, non-

public information that was provided during the

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 29

call. A transcript of the portion of the conference

call or slides or a similar presentation including

such information is sufficient. (SEC CDI

Question 106.02.)

9. The conditional exemption for the conference

call is also available where the company files its

earnings release as an exhibit to its Form 10-Q

before the conference call takes place (rather than

furnishing the earnings release on Form 8-K).

(SEC CDI Question 106.04.)

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 30

Item 2.03

Creation of a Direct Financial Obligation or an

Obligation under an Off-Balance Sheet

Arrangement of a Registrant

An 8-K Is Required If:

• The company becomes obligated on a direct

financial obligation that is material to the

company

• The company becomes directly or contingently

liable for an obligation that is material to the

company arising out of an off-balance sheet

arrangement

A “direct financial obligation” is any of the

following: (1) a long-term debt obligation, (2) a

finance lease obligation, (3) an operating lease

obligation, or (4) a short-term debt obligation that

arises other than in the ordinary course of business.

• A “long-term debt obligation” means a

payment obligation under long-term

borrowings referenced in FASB ASC

paragraph 470-10-50-1 (Debt Topic) as

may be modified or supplemented.

• A “finance lease obligation” means a

payment obligation under a lease that

would be classified as a finance lease

pursuant to FASB ASC Topic 842, Leases,

as may be modified or supplemented.

• An “operating lease obligation” means a

payment obligation under a lease that

would be classified as an operating lease

pursuant to FASB ASC Topic 840, as may

be modified or supplemented.

• A “short-term debt obligation” is a

payment obligation under a borrowing

arrangement that is scheduled to mature

within one year, or, for a company that uses

the operating cycle concept of working

capital, within the company’s operating

cycle that is longer than one year.

An “off-balance sheet arrangement” means any

transaction, agreement or other contractual

arrangement to which an entity unconsolidated with

the registrant is a party, under which the registrant

has:

(1) any obligation under a guarantee contract that

has any of the characteristics identified in FASB

ASC paragraph 460-10-15-4 (Guarantees Topic), as

may be modified or supplemented, and that is not

excluded from the initial recognition and

measurement provisions of FASB ASC paragraphs

460-10-15-7, 460-10-25-1, and 460-10-30-1;

(2) a retained or contingent interest in assets

transferred to an unconsolidated entity or similar

arrangement that serves as credit, liquidity or

market risk support to such entity for such assets;

(3) any obligation, including a contingent

obligation, under a contract that would be

accounted for as a derivative instrument, except that

it is both indexed to the registrant’s own stock and

classified in stockholders’ equity in the registrant’s

statement of financial position, and therefore

excluded from the scope of FASB ASC Topic 815,

Derivatives and Hedging, pursuant to FASB ASC

subparagraph 815-10-15-74(a), as may be modified

or supplemented; or

(4) any obligation, including a contingent

obligation, arising out of a variable interest (as

defined in the FASB ASC Master Glossary), as may

be modified or supplemented) in an unconsolidated

entity that is held by, and material to, the registrant,

where such entity provides financing, liquidity,

market risk or credit risk support to, or engages in

leasing, hedging or research and development

services with, the registrant.

Required Disclosure:

• Date company becomes obligated or liable

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 31

• Brief description of the transaction or

agreement creating the obligation or

arrangement

• For direct financial obligations:

− amount of the obligation, including the

terms of its payment, and, if applicable, a

brief description of the material terms

under which it may be accelerated or

increased

− nature of any recourse provisions that

would enable the company to recover from

third parties

• For off-balance sheet arrangements:

− a brief description of the nature and amount

of the obligation of the company under the

arrangement, including the material terms

under which it may become a direct

obligation, if applicable, or may be

accelerated or increased

− nature of any recourse provisions that

would enable the company to recover from

third parties

− maximum potential amount of future

payments (undiscounted) that the company

may be required to make (without

reduction for any amounts that may

possibly be recovered by the company

under recourse or collateralization

provisions in any guarantee agreement,

transaction or arrangement)

• Brief description of the other terms and

conditions of the transaction, agreement,

obligation or arrangement that are material to

the company

Practice Tips:

1. The company is not required to file a report

under this item until it has entered into an

agreement enforceable against it, whether or not

subject to conditions, under which the direct

financial obligation will arise or be created or

issued. If there is no such agreement, the Form

8-K is due within four business days after the

closing or settlement of the transaction or

arrangement under which the direct financial

obligation arises or is created.

2. The instructions to this item provide that if the

company enters into a material facility, program

or similar arrangement that creates or may give

rise to direct financial obligations in connection

with multiple transactions, then the company is

required to file a Form 8-K under this item

disclosing that it has entered into such facility,

program or similar arrangement, even before it

actually borrows any funds. As direct financial

obligations arise or are created under the facility,

program or similar arrangement, additional Form

8-Ks would be required to the extent the

obligations are material to the company

(including when a series of previously

undisclosed individually immaterial obligations

become material in the aggregate). As a result,

the company will need to continuously monitor

aggregate takedowns from its facilities.

3. The company should establish some upfront

quantitative guideposts as to what a material

amount of debt would be for purposes of

triggering reporting obligations under this item.

While quantitative rules of thumb are helpful in

separating routine borrowings from material

borrowings, the company must keep in mind that

materiality is a facts and circumstances

determination that must ultimately be assessed in

a qualitative manner taking into account all

relevant factors. (See SEC CDI Question 107.02,

which discusses the required materiality

determination in the context of a refinancing

transaction.)

4. A Form 8-K is not required when the obligation

is a security sold under an effective registration

statement and the final prospectus contains all of

the information required by this item.

5. The company must provide the disclosure

required regarding off-balance sheet

arrangements whether or not the company is also

a party to the transaction or agreement creating

the contingent obligation arising under the off-

balance sheet arrangement. If neither the

company nor any of its affiliates is also a party to

the transaction or agreement creating the

contingent obligation arising under the off-

balance sheet arrangement, the four-business-day

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 32

period for reporting the event under this item

begins on the earlier of (1) the fourth business

day after the contingent obligation is created or

arises and (2) the day on which an executive

officer of the company becomes aware of the

contingent obligation. The company is

responsible for maintaining disclosure controls

and procedures that are designed to ensure that it

timely becomes aware of any such arrangements.

(SEC CDI Question 107.01.)

6. If material to the company, this item is triggered

by direct financial obligations or off-balance

sheet arrangements entered into by the

company’s subsidiaries. (SEC CDI Question

101.02.)

7. When a credit agreement or other similar

agreement is being reported under this item, and

such agreement includes covenants or other

provisions that limit the payment of dividends,

consider the applicability of also reporting under

Item 3.03 (Material Modifications to Rights of

Security Holders).

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 33

Item 2.04

Triggering Events that Accelerate or Increase a

Direct Financial Obligation or an Obligation

under an Off-Balance Sheet Arrangement

An 8-K Is Required If:

• A “triggering event” (such as an event of

default, event of acceleration or similar event)

causing the increase or acceleration of a direct

financial obligation of the company occurs, and

the consequences of the event are material to

the company

• A “triggering event” (such as an event of

default, event of acceleration or similar event)

occurs causing the company’s obligation under

an off-balance sheet arrangement to increase or

be accelerated or causing a contingent

obligation of the company under an off-balance

sheet arrangement to become a direct financial

obligation, and the consequences of such event

are material to the company

A “direct financial obligation” has the same

definition as under Item 2.03, but also includes an

obligation arising out of an off-balance sheet

arrangement that is accrued under FASB ASC

Section 450-20-25, Contingencies—Loss

Contingencies—Recognition, as a probable loss

contingency.

“Off-balance sheet arrangement” has the same

definition as under Item 2.03.

Required Disclosure:

• Date of the triggering event

• Brief description of the underlying agreement,

transaction or arrangement

• Brief description of the triggering event

• Amount of the direct financial obligation, or the

amount and nature of the off-balance sheet

obligation, in each case, as increased if

applicable

• Terms of payment or acceleration that apply

• Any other material obligation of the company

that may arise, increase, be accelerated or

become a direct financial obligation as a result,

directly or indirectly, of the triggering event

Practice Tips:

1. In assessing the materiality of a triggering event

under this item, the company must also take into

account any cross-default or cross-acceleration

provisions that are affected by the triggering

event.

2. No disclosure is required under this item unless

and until a triggering event has occurred under

the applicable agreement, transaction or

arrangement, including the satisfaction of all

conditions to such occurrence, except for the

passage of time.

3. If the applicable agreement, transaction or

arrangement requires that notice be given to the

company in order for there to be a triggering

event, then no disclosure is required under this

item until such a notice has been given. (SEC

CDI Question 108.01.) Once such a notice is

received, the company can no longer claim to

have a good faith belief that a triggering event

has not occurred.

4. A notice of default is a triggering event

notwithstanding that the matter is pending with

an arbitrator. (SEC CDI Question 208.02.)

5. A voluntary redemption of convertible notes by a

company is not a triggering event. (SEC CDI

Question 208.01.)

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 34

6. The company should inventory all of its existing

agreements, transactions and arrangements

relating to direct financial obligations and off-

balance sheet arrangements and make an initial

determination as to which ones are material and

the dollar amounts under each that would likely

be considered to be material.

7. If material to the company, this item is triggered

by a “triggering event” causing the increase or

acceleration of direct financial obligations or off-

balance sheet arrangements of a subsidiary of the

company. (SEC CDI Question 101.02.)

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 35

Item 2.05

Costs Associated with Exit or Disposal Activities

An 8-K Is Required If:

• The company’s board of directors, a board

committee, or an authorized officer or officers

(if board action is not required):

− commits the company to an exit or disposal

plan;

− otherwise disposes of a long-lived asset; or

− terminates employees under a plan of

termination,

in each case, under which material charges will

be incurred under generally accepted accounting

principles.

A “plan of termination” is defined in FASB ASC

paragraph 420-10-25-4 (Exit or Disposal Cost

Obligations Topic) (formerly FASB Statement of

Financial Accounting Standards No. 146,

Accounting for Costs Associated with Exit or

Disposal Activities).

Required Disclosure:

• Date of commitment to course of action

• Description of course of action, including the

facts and circumstances leading to the expected

action

• Expected completion date

• An estimate of the total amount or range of

amounts expected to be incurred in connection

with the action, both in the aggregate and for

each major type of cost

• An estimate of the amount or range of amounts

of the charge that will result in future cash

expenditures

If a required estimate cannot be made at the time of

initial filing, the company must amend the Form 8-

K within four business days after it makes such

estimate.

Practice Tips:

1. While this item has been drafted to use

terminology defined in the accounting literature,

in common parlance the types of events captured

by this item include “write-offs” and

“restructurings.”

2. The company is not obligated to disclose in its

initial Form 8-K filing under this item an

estimate of the amount or range of amounts

expected to be incurred and/or estimate of the

amount or range of amounts of the charges if it is

unable to make a good faith estimate of such

amount. However, since an inability to provide

an estimate could trigger adverse investor

reaction, the company will want to provide an

estimate whenever possible and may wish to

postpone committing to the course of action until

such an estimate is available.

3. If the company’s initial Form 8-K filing under

this item did not include a required estimate, the

company must amend its earlier Form 8-K filing

to include the estimate within four business days

after the company formulates its estimate.

4. If the company’s initial Form 8-K filing under

this item included an estimate of the amount of

the charge, but that amount later changes, even

though Form 8-K does not impose a duty to

update the company’s original filing, the

company should consider filing an amendment to

reflect its revised estimate, especially during the

period prior to when the company files a Form

10-Q or Form 10-K that includes discussion of

the new estimate.

5. For all reportable events that can be triggered by

the action of either the board of directors, a board

committee, or an authorized officer or officers (if

board action is not required), procedures should

be implemented so that it is clear when a

particular plan of action has been committed to,

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 36

as opposed to when it is merely under active

consideration. Care should be taken to ensure

that the board or committee minutes or other

relevant documentation accurately reflect when

the commitment was made.

6. “Commitment” to a plan means reaching a final

determination regarding a course of action.

7. The costs associated with an exit activity that

must be reported under this item are not limited

to the costs under ASC 420, Exit or Disposal

Cost Obligations (SFAS 146). (SEC CDI

Question 109.01.)

8. If, in connection with an exit activity, the

company is terminating employees as part of a

plan to exit an activity that is covered by ASC

420, Exit or Disposal Cost Obligations (SFAS

146), then the company is not required to

disclose the commitment to the plan on Form 8-K

until it has informed affected employees. (SEC

CDI Question 109.02.)

9. The “plan of termination” need not fall within an

“exit activity,” as defined in ASC 420, Exit or

Disposal Cost Obligations (SFAS 146), or

otherwise constitute an “exit or disposal plan” (or

part of one), to trigger an Item 2.05 Form 8-K

filing requirement. (SEC CDI Question 209.01.)

For example, a Form 8-K could be required

under this item due to terminations under a plan

for conducting layoffs where the underlying

business is not substantially altered or eliminated.

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 37

Item 2.06

Material Impairments

An 8-K Is Required If:

• The company’s board of directors, a board

committee, or an authorized officer or officers

(if board action is not required) concludes that a

material charge for impairment to one or more

of the company’s assets is required under

generally accepted accounting principles

Required Disclosure:

• Date of conclusion that a material charge is

required

• Description of the impaired assets

• Facts and circumstances leading to the

conclusion that the charge for impairment is

required

• An estimate of the amount or range of amounts

of the impairment charge

• An estimate of the amount or range of amounts

of the impairment charge that will result in

future cash expenditures

If a required estimate cannot be made at the time of

initial filing, the company must amend the Form

8-K within four business days after it makes such

estimate.

Practice Tips:

1. The terminology used in this item is based on

ASC 360-10, Impairment and Disposal of Long-

Lived Assets.

2. The types of impairments reportable under this

item include, among others, impairments of

securities or goodwill.

3. No 8-K filing is required under this item if:

− the impairment conclusion is made in

connection with, or at a time that coincides

with (but is not in connection with), the

preparation, review or audit of financial

statements required to be included in the

company’s next periodic report;

− the report is timely filed; and

− such impairment conclusion is disclosed in

the report (Instruction to Item 2.06; SEC

CDI Question 110.01).

4. Similar to Item 2.05, a company is not obligated

to disclose an estimate of the amount of charges

in its initial Form 8-K filing under this item if it

is unable to make a good faith estimate of such

amount. Within four business days after the

company formulates an estimate, the company

must amend its earlier Form 8-K filing to include

the estimate. Since an inability to provide an

estimate or range could trigger adverse investor

reaction, the company should provide an estimate

whenever possible.

5. Procedures should be implemented so that it is

clear when there has been a conclusion that an

impairment charge must be taken, as opposed to

when it is merely under active consideration.

6. When the assets impaired are significant,

consider the applicability of also reporting under

Item 2.01 (Completion of Acquisition or

Disposition of Assets).

7. As part of its interpretive guidance following

adoption of the Tax Cuts and Jobs Act of 2017,

the SEC staff indicated that re-measurement of a

deferred tax asset to reflect the impact of a

change in tax rule or tax law is not an impairment

under ASC Topic 740. (SEC CDI Question

110.02).

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 38

Item 3.01

Notice of Delisting or Failure to Satisfy a

Continued Listing Rule or Standard; Transfer of

Listing

An 8-K Is Required If:

• The company receives notice from the national

securities exchange (e.g., NYSE or Nasdaq)

that maintains the principal listing for any class

of the company’s common equity that: (1) the

company or such class of the company’s

securities do not satisfy a continued listing rule

or standard; (2) the exchange has submitted an

application to the SEC to delist such class of

the company’s securities; or (3) the exchange

has taken all necessary steps to delist the

company’s security (Item 3.01(a))

• The company has notified the national

securities exchange that maintains the principal

listing for any class of the company’s common

equity that the company is aware of any

material noncompliance with a continued

listing rule or standard (Item 3.01(b))

• The national securities exchange, in lieu of

suspending trading in or delisting such class of

the company’s securities, issues a public

reprimand letter or similar communication

indicating that the company has violated a rule

or standard of the exchange or association (Item

3.01(c))

• The company’s board of directors, a board

committee, or an authorized officer or officers

(if board action is not required) has taken

definitive action to cause the listing of a class

of its common equity to be withdrawn from the

national securities exchange that maintains the

principal listing for such class of securities,

including by reason of a transfer of the listing

or quotation to another securities exchange

(Item 3.01(d))

Required Disclosure:

• Date of notice or action

• Rule or standard in question that the company

fails, or has failed, to satisfy

• In the case of a company that receives a notice

of the type under Item 3.01(a) or provides a

notice of the type under Item 3.01(b), any

action or response that, at the time of filing, the

company has determined to take in response to

the notice or regarding its noncompliance

• In the case of a company that is the subject of a

public reprimand letter or similar

communication under Item 3.01(c), the date

and a summary of the contents of the letter or

communication

Practice Tips:

1. Disclosure is required even if the company has

the benefit of a grace period or similar extension

period during which it may cure the deficiency

that triggers disclosure.

2. In most cases of involuntary delisting, two Form

8-Ks will be required: the first to report the

company’s initial receipt of a notice of

noncompliance and the second to report the

ultimate delisting of the company’s securities.

3. Subsequent notices or other communications

regarding noncompliance with the same

continued listing rule or standard covered by the

initial notice that triggers a filing obligation

under this item do not require additional Form 8-

K filings.

4. Although not required, a company that files a

Form 8-K under this item and then comes back

into compliance may want to amend its Form 8-K

(or file a new Form 8-K under Item 8.01) to

reflect that fact.

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 39

5. The company should develop an internal early

warning system to identify and track potential

listing issues such as falling below the applicable

minimum bid price for even one day.

6. This item does not apply to companies that are

exclusively traded in the over-the-counter

market. In addition, no Form 8-K is required

under this item if an OTC company applies to list

its common stock on an exchange, or upon the

approval of the application. (SEC CDI Question

211.01.)

7. The company is not required to file as an exhibit

to its Form 8-K a copy of the actual notice of

noncompliance that it receives from the

exchange.

8. Where the rules require the company to disclose

in its Form 8-K any action or response that, at the

time of filing, the company has determined to

take in response to the notice or regarding its

noncompliance, the company should

affirmatively disclaim any intention to update its

Form 8-K for purposes of disclosing any action

or response that the company decides to take

after the filing of its initial Form 8-K under this

item. Of course, if any such material facts do

arise, the company should carefully evaluate

whether additional disclosure is required or

prudent.

9. Definitive action taken by a company for

purposes of Item 3.01(d) may include the

adoption of a resolution by the board of directors

(or a board committee) to delist the securities.

10. NYSE-listed companies are required to provide

an annual written affirmation regarding their

compliance with the NYSE’s corporate

governance rules and to provide interim written

affirmations whenever certain changes relating

to board compensation or corporate governance

occur. The routine submission of these

affirmations will not trigger a Form 8-K

reporting obligation. However, where an

affirmation indicates any noncompliance (and

the company checks the box on the NYSE

affirmation to indicate noncompliance),

consideration must be given as to whether the

noncompliance is material, in which case it

would trigger a disclosure obligation under

Item 3.01(b).

11. Likewise, under Nasdaq Marketplace Rule

5625, a company must provide Nasdaq with

prompt notification after an executive officer of

the company becomes aware of any

noncompliance by the company with Nasdaq’s

corporate governance rules. In such cases,

consideration must be given as to whether the

noncompliance is material, in which case it

would trigger a disclosure obligation under

Item 3.01(b).

12. No Form 8-K is required under Item 3.01(a)

where the delisting is due to certain routine and

noncontroversial events such as the redemption

of an entire class of securities.

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 40

Item 3.02

Unregistered Sales of Equity Securities

An 8-K Is Required If:

• The company sells equity securities in a

transaction not registered under the Securities

Act

No Form 8-K is required if the equity securities sold

in the aggregate since the company’s last report

filed under this item or last periodic report,

whichever is more recent, constitute less than 1% of

the company’s outstanding securities of that class

(or less than 5% for a smaller reporting company).

Required Disclosure:

• The information in paragraphs (a) and (c)

through (e) of Item 701 of Regulation S-K

regarding the company’s sale of equity

securities in a transaction that is not registered

under the Securities Act. Specifically, the

company must disclose:

− Date of sale and title and amount of

securities sold

− For securities sold for cash, the aggregate

offering price and aggregate underwriting

discounts and commissions

− For securities sold other than for cash, the

nature of the transaction and the nature and

aggregate amount of consideration received

by the company

− Exemption from Securities Act registration

claimed by the company and the facts

relied upon to make the exemption

available

− Where the securities sold are convertible or

exchangeable into equity securities, or are

warrants or options representing equity

securities, the terms of conversion or

exercise of the securities sold

Practice Tips:

1. The term “equity securities” includes debt

instruments that are convertible into common

stock and options that are exercisable for

common stock.

2. If a grant of stock options pursuant to an

employee stock option plan does not constitute a

“sale” or “offer to sell” under Section 2(a)(3) of

the Securities Act, the grant need not be reported.

The trigger for reporting would be when the

option is exercised (if the option exercise is not

then covered by a Form S-8 and the applicable

reporting threshold is exceeded). (SEC CDI

Question 112.01.)

3. If a company sells, in an unregistered transaction,

any shares of a class of equity securities that is

not currently outstanding, the reporting threshold

would be exceeded and a Form 8-K would be

required under this item. (SEC CDI Question

112.02.)

4. The company is not required to disclose

information under this item until it enters into an

agreement enforceable against it under which the

equity securities are to be sold (SEC CDI

Question 212.01), or if no agreement exists, after

the closing or settlement of the transaction or

arrangement under which the equity securities are

sold.

5. If a wholly owned subsidiary that is a reporting

company receives an additional equity

investment from its parent and the reporting

threshold is exceeded, the wholly owned

subsidiary must file a Form 8-K to report the

additional equity investment, regardless of

whether the wholly owned subsidiary meets the

conditions for the filing of abbreviated periodic

reports under General Instruction H of Form 10-

Q and General Instruction I of Form 10-K. (SEC

CDI Question 212.02.)

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 41

6. In determining whether the applicable 1% (5%

for smaller reporting companies) reporting

threshold has been surpassed, the number of

outstanding securities consists only of shares

actually outstanding and is not determined on a

fully diluted basis.

7. A Form 8-K filing requirement is triggered upon

an unregistered sale of warrants, options or

convertible notes if the reporting threshold is

exceeded. The company must disclose the terms

of the exercise of the warrants or the options or

the conversion of the convertible notes. If the

Form 8-K also discloses the maximum amount of

the underlying securities that may be issued

through the exercise of the warrants or the

options or the conversion of the convertible

notes, then a subsequent Form 8-K filing

requirement is not triggered upon the exercise of

the warrants or the options or the conversion of

the notes. (SEC CDI Question 212.03.)

8. The company should put in place a system for

keeping a running count of all unregistered sales

of securities so that it will know when such sales,

in the aggregate, have triggered an 8-K reportable

event under this item. The most likely sources of

unregistered sales are:

− sales of securities in Rule 144A, PIPE and

other private placement capital-raising

transactions;

− conversion of convertible notes into

common stock in reliance on Section

3(a)(9) of the Securities Act;

− inducement grants (such as restricted stock)

awarded outside a stockholder-approved

plan and for which a stand-alone Form S-8

has not been filed, in connection with the

initial employment of new executives and

employees; and

− sales in private-placement M&A

transactions.

9. Disclosure about unregistered sales of equity

securities is required by Part II, Item 2(a) of

Form 10-Q to the extent not previously reported

on a Form 8-K, or by Part II, Item 5(a) of Form

10-K to the extent not previously reported on a

Form 8-K or Form 10-Q. Accordingly, any sales

of unregistered equity securities that do not

exceed the reporting threshold of this item will

continue to be reported on Form 10-K or Form

10-Q.

10. The Form 10-K and Form 10-Q reporting

requirements also require disclosure of the

information required by Item 701(b) of

Regulation S-K, regarding the principal

underwriters, if any, and (for non-public

offerings) the name of persons or identity of

class of persons to whom securities were sold.

Therefore, unless the company voluntarily

includes this information in its Form 8-K, this

information will need to be reported in the

applicable Form 10-K or Form 10-Q. The

company may not want to include this

information in its Form 8-K if the offering is

not yet completed because, for example,

disclosure of the identity of the underwriters

would go beyond the safe harbor from the

definition of an “offer” included in Securities

Act Rule 135c.

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 42

Item 3.03

Material Modifications to Rights of Security

Holders

An 8-K Is Required If:

• The constituent instruments (such as the charter

or, in the case of debentures, the indenture)

defining the rights of holders of a class of

registered securities have been materially

modified

• The rights of any class of registered securities

have been materially limited or qualified by the

issuance or modification of another class of

securities by the company

Required Disclosure:

• Date of modification or issuance

• Title of class of securities involved

• Brief description of general effect of

modification or issuance

Practice Tips:

1. Working capital restrictions and other limitations

upon the payment of dividends are examples of

limitations on the rights of common stock that

must be reported under this item.

2. The triggering event related to a shareholder

rights plan under this item occurs upon the

issuance of the dividend of a preferred share

purchase right. (SEC CDI Question 213.01.)

However, the company must file an Item 1.01

Form 8-K when it enters into the shareholder

rights plan if the plan constitutes a material

definitive agreement not made in the ordinary

course of business. Also, the filing of the

certificate of designation triggers an Item 5.03

Form 8-K because it is an amendment of the

company’s charter.

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 43

Item 4.01

Changes in Registrant’s Certifying Accountant

An 8-K Is Required If:

• An independent accountant who was previously

engaged as the principal accountant to audit the

company’s financial statements, or an

independent accountant upon whom the

principal accountant expressed reliance in its

report regarding a significant subsidiary,

resigns (or indicates that it declines to stand for

re-appointment after completion of the current

audit) or is dismissed

• A new independent accountant has been

engaged as either the principal accountant to

audit the company’s financial statements or as

an independent accountant on whom the

principal accountant is expected to express

reliance in its report regarding a significant

subsidiary

Required Disclosure:

• For departure of accountant:

− Whether the former accountant resigned,

declined to stand for re-election or was

dismissed (using one of those three terms)

and the date thereof

− The other information required by Item

304(a)(1) of Regulation S-K, including:

• Whether the former accountant’s audit

reports for either of the past two years

contained an adverse opinion, disclaimer of

opinion or qualification

• Whether the decision to change

accountants was recommended or approved

by the audit committee or, if the company

has no audit committee, the board

• Whether there have been any

disagreements with the former accountant

or certain other reportable events during the

company’s two most recent fiscal years and

any subsequent interim period through the

date of termination (and if so, provide

certain information about such

disagreements or events)

− Compliance with Item 304(a)(3) of

Regulation S-K, including:

• Providing the former accountant with a

copy of disclosures

• Requesting the former accountant to

provide a letter indicating whether it agrees

with the company’s disclosures

• Filing the former accountant’s letter as an

exhibit

• For engagement of accountant:

− Identify the newly engaged accountant and

the date of engagement

− The other information required by Item

304(a)(2) of Regulation S-K regarding

prior consultations with the newly engaged

accountant

Practice Tips:

1. If the termination of one accountant and the

engagement of a new accountant do not occur at

the same time, then two Form 8-Ks will be

required — one reporting the termination and the

other reporting the engagement.

2. If the company engages a new accountant for its

next fiscal year while the predecessor accountant

is still completing the audit of the current year, a

termination of the predecessor accountant is

deemed to occur and should be reported as part

of the Form 8-K reporting the engagement of the

new accountant.

3. If a company amends its Item 4.01 Form 8-K

disclosures for any reason, it must file as an

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 44

exhibit an updated letter from the auditor

addressing the revised disclosures. (Section

4510.3 of SEC Division of Corporation

Finance’s Financial Reporting Manual)

4. If a predecessor auditor refuses to furnish a letter

stating whether it agrees with the company’s

statements in its Item 4.01 Form 8-K, the

company should indicate that fact in the Item

4.01 Form 8-K or by amendment to the original

Form 8-K. (SEC CDI Question 214.01 and

Section 4520.2 of SEC Division of Corporation

Finance’s Financial Reporting Manual)

5. Form 8-K must be used to report events covered

by this item, even if the event happens to occur

within four business days before the company’s

filing of a Form 10-Q or Form 10-K. (SEC CDI

Question 101.01 and SEC CDI Question 214.02.)

6. The company must use one of the three terms

specified in Item 304 of Regulation S-K:

“resigned,” “declined to stand for re-election” or

“dismissed.” Use of any other terminology, such

as “replaced,” “ended” or “will no longer serve

as,” typically results in receipt of an SEC

comment requesting that the disclosure be

amended to use one of the three items specified

in S-K Item 304. (Section 4510.2 of SEC

Division of Corporation Finance’s Financial

Reporting Manual)

7. If a principal accountant resigns, declines to

stand for re-election or is dismissed because its

registration with the PCAOB has been revoked,

the company should disclose this fact when filing

the Item 4.01 Form 8-K. (SEC CDI Question

114.01.)

8. If a company engages a new principal accountant

that is related to the former principal accountant

(e.g., the firms are affiliates or are member firms

of the same network), but the new principal

accountant is a separate legal entity and is

separately registered with the PCAOB, the

company must still file an Item 4.01 Form 8-K to

report the change in certifying accountant. (SEC

CDI Question 114.02.)

9. If a company’s principal accountant enters into a

business combination with another accounting

firm, the company must evaluate how the

business combination is structured and the facts

and circumstances to determine whether to file an

Item 4.01 Form 8-K to report a change in

certifying accountant. (SEC CDI Question

114.03.)

10. An acquisition accounted for as a reverse

acquisition will always result in a change in

accountants, unless the same accountant

reported on the most recent financial statements

of both the registrant and the accounting

acquirer. An Item 4.01 Form 8-K should be

filed within four business days of the change in

accountants (typically, the date the transaction

is consummated). The accountant that will no

longer be associated with the registrant’s

financial statements is the predecessor

accountant. If a decision has not been made as

to which accountant will continue as the

successor accountant as of the date of filing the

Item 2.01 Form 8-K reporting the completion

of the transaction, an Item 4.01 Form 8-K must

be filed within four business days of the date

the decision is made. (Section 4520.3 of SEC

Division of Corporation Finance’s Financial

Reporting Manual)

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 45

Item 4.02

Non-Reliance on Previously Issued Financial

Statements or a Related Audit Report or

Completed Interim Review

An 8-K Is Required If:

• Company Determination — The company’s

board of directors, a board committee, or an

authorized officer or officers (if board action is

not required) concludes that any of the

company’s previously issued financial

statements, covering one or more years or

interim periods, should no longer be relied

upon because of an error in such financial

statements as addressed in ASC Topic 250,

Accounting Changes and Error Corrections

(Item 4.02(a))

• Accountant Determination — The company is

advised by, or receives notice from, its

independent accountant that disclosure should

be made or action should be taken to prevent

future reliance on a previously issued audit

report or completed interim review related to

previously issued financial statements (Item

4.02(b))

Required Disclosure:

• Date of conclusion or accountant notification

• Identification of affected financial statements

• Brief description of the facts underlying the

conclusion (to the extent known to the company

at the time of filing) or of information provided

by the accountant

• Statement of whether the audit committee, or

the board of directors in the absence of an audit

committee, or an authorized officer or officers,

discussed with the company’s independent

accountant the subject matter giving rise to the

conclusion or notice

• Written notice received from the accountant as

Exhibit 7 in the case of an Accountant

Determination

In the case of an Accountant Determination under

Item 4.02(b), the company also must provide the

independent accountant with a copy of the

disclosures it is making under this item no later than

the same day it files the disclosures with the SEC,

and must request the independent accountant

furnish to the company as promptly as possible a

letter addressed to the SEC stating whether the

accountant agrees with the statements made by the

company and, if not, stating the disagreements. The

company must then amend its previously filed Form

8-K by filing the independent accountant’s letter as

an exhibit within two business days of the

company’s receipt of the letter.

Practice Tips:

1. A copy of any proposed disclosure should be

provided to the accountant in advance of filing,

so that the accountant’s input can be received,

considered and implemented, as appropriate,

prior to initial filing of the Form 8-K. In

addition, it is generally preferable, if possible, to

include the accountant’s letter as to its agreement

or disagreement with the company’s disclosure in

the initial Form 8-K filing.

2. Form 8-K must be used to report events covered

by this item, even if the event happens to occur

within four business days before the company’s

filing of a Form 10-Q or Form 10-K. (SEC CDI

Question 101.01 and SEC CDI Question 215.01.)

3. If the company has reported under Item 4.02(a)

the company’s determination that reliance should

not be placed on previously issued financial

statements because of an error, the company does

not need to file a second Form 8-K under Item

4.02(b) to report that its auditor has also

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 46

concluded that future reliance should not be

placed on its audit report, unless the auditor’s

conclusion relates to an error or matter that is

different from that which triggered the

company’s filing under Item 4.02(a). (SEC CDI

Question 115.01.)

4. The Item 4.02 requirement to file a Form 8-K if a

company concludes that any previously issued

financial statements should no longer be relied

upon because of an error in such financial

statements does not apply to pro forma financial

information. If an error is detected in pro forma

financial information, an amendment to the form

containing such information may be required to

correct the error. (SEC CDI Question 115.02.)

5. If a company discovers a material error in an

interactive data file, but there is no error in the

company’s financial statements themselves, Item

4.02 does not require a Form 8-K. The company

should promptly file an amendment to the

original form to correct the interactive data file.

If the company wishes, it may also file an Item

7.01 or Item 8.01 Form 8-K to indicate that the

erroneous interactive data file should no longer

be relied upon. (SEC CDI Question 115.03.)

6. Once an Item 4.02 Form 8-K has been filed, the

company must carefully evaluate whether it can

continue to sell securities under existing

registration statements (including Form S-8s).

The answer for a particular company is

dependent in significant part on that company’s

facts and circumstances, so the company should

consult with its contacts at WilmerHale on this

issue if it files an Item 4.02 Form 8-K.

7. Section 4600 of SEC Division of Corporation

Finance’s Financial Reporting Manual

summarizes the SEC’s guidance and should be

reviewed in addition to the CDIs.

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 47

Item 5.01

Changes in Control of Registrant

An 8-K Is Required If:

• To the knowledge of the board, a board

committee, or an authorized officer or officers

of the company, a change in control of the

company has occurred

• There is an arrangement known to the company

that may result in a change in control

Required Disclosure:

• Where a change in control has occurred

− Identity of person who acquired control

− Identity of person from whom control was

assumed

− Date and description of the transaction that

resulted in the change in control

− Basis of control (including percentage of

the voting securities of the company owned

by the acquiring person following the

change in control)

− Amount of consideration used by acquiring

person

− Source of funds used by acquiring person

(subject to certain exceptions)

− Any arrangements or understandings

among members of both the former and

new control groups with respect to election

of directors or other matters

• Where there is an arrangement that may result

in a change in control, a description of the

arrangements known to the company as

required by Item 403(c) of Regulation S-K,

including any pledge of securities of the

company or its parent(s)

Practice Tips:

1. The obligation to disclose the source of the

acquiring person’s funds is subject to an

exception in the case of certain loans made by

banks in the ordinary course of business.

2. In describing any arrangement in accordance

with Item 403(c) of Regulation S-K, a company

is not required to describe ordinary default

provisions contained in its charter, trust

indentures or other governing instruments

relating to its securities.

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 48

Item 5.02

Departure of Directors or Certain Officers;

Election of Directors; Appointment of Certain

Officers; Compensatory Arrangements of Certain

Officers

An 8-K Is Required If:

• Departure of Director Due to a Disagreement

— A director has resigned or refuses to stand

for re-election since the date of the last annual

meeting of shareholders because of a

disagreement with the company, known to an

executive officer of the company, on any matter

relating to the company’s operations, policies

or practices, or if a director has been removed

for cause from the board of directors (Item

5.02(a))

• Departure of Director Other Than Due to a

Disagreement; Departure of Principal Officer or

Named Executive Officer — A principal officer

or named executive officer retires, resigns or is

terminated from that position; or one of the

company’s directors retires, resigns, is removed

or refuses to stand for re-election under

circumstances that do not require the company

to provide disclosure under Item 5.02(a) (Item

5.02(b))

• Appointment of Principal Officer — The

company appoints a new principal officer (Item

5.02(c))

• Election of Director — The company elects a

new director to the board, except by a vote of

security holders at an annual or special meeting

(Item 5.02(d))

• Compensatory Arrangements with Certain

Officers — The company (i) enters into, adopts

or otherwise commences a material

compensatory plan, contract or arrangement

(whether or not written) covering the principal

executive officer, the principal financial officer

or any other named executive officer; (ii)

materially modifies such a plan, contract or

arrangement; or (iii) makes, or materially

modifies, a material grant or award to any such

person under such a plan, contract or

arrangement. (Item 5.02(e))

• Executive Compensation Determinations Made

After Publication of Summary Compensation

Table — If the company makes a payment,

grant, award or decision or there is another

occurrence as a result of which salary or bonus

amounts for a named executive officer that

were omitted from the Summary Compensation

Table in a previous filing (because they were

not then calculable) become calculable in

whole or part. (Item 5.02(f))

− Item 5.02(f) applies when a company relies

on Instruction 1 to Item 402(c)(2)(iii) and

(iv) of Regulation S-K to omit salary and

bonus information for one of its named

executive officers in its most recent

Summary Compensation Table filed with

the SEC because it was not calculable at

the time

“Principal officer” means the company’s principal

executive officer, president, principal financial

officer, principal accounting officer, principal

operating officer or any person performing similar

functions. For purposes of this definition, it does

not matter whether or not the company considers

the principal officer to be an “executive officer”

under Exchange Act Rule 3b-7. (SEC CDI

Question 117.06.)

“Named executive officer” refers to those executive

officers for whom executive compensation

disclosure was required in the company’s most

recent proxy statement or Form 10-K (Instruction 4

to Item 5.02).

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 49

For foreign private issuers that satisfy the Item 401

of Regulation S-K disclosure requirement by

providing compensation disclosure in accordance

with Item 401(a)(1), “named executive officer”

refers to those executive officers for whom

executive compensation disclosure was required in

the company’s most recent filing pursuant to Item

6.B or 6.E.2 of Form 20-F (Instruction 4 to Item

5.02). (SEC CDI Question 217.09.)

Required Disclosure:

• For departure of directors covered by Item

5.02(a):

− Date of the director’s resignation, refusal to

stand for re-election or removal

− Positions held by the director on any board

committee at the time of resignation,

refusal to stand for re-election or removal

− Brief description of the circumstances

representing the disagreement that the

company believes, in whole or in part,

caused the director’s resignation, refusal to

stand for re-election or removal

The company must file a copy of any written

correspondence provided by the director about

the circumstances of his or her resignation,

refusal to stand for re-election or removal as an

exhibit to the Form 8-K, regardless of whether

the director requests that the company make

such filing. The company must provide the

director with a copy of the disclosures under

this item no later than the day that the company

files the disclosures with the SEC. The

company must also provide the director with

the opportunity to furnish a letter addressed to

the company as promptly as possible stating

whether he or she agrees with the company’s

disclosures in response to this item and, if not,

stating the disagreements. Finally, the

company must file any letter it receives from

the director as an exhibit by amendment to the

previously filed Form 8-K within two business

days after receipt by the company.

• For departure of principal officers or named

executive officers, or departure of directors not

covered by Item 5.02(a):

− Fact that the event occurred

− Date of event

− Effective date of event (SEC CDI Question

117.01.)

− In the case of a refusal to stand for

re-election, date of election in question

(SEC CDI Question 117.01.)

• For appointment of principal officer:

− Officer’s name and position

− Date of appointment

− Biographical information as required by

Item 401(b) of Regulation S-K, all family

relationships as required by Item 401(d) of

Regulation S-K, the officer’s business

experience as required by Item 401(e) of

Regulation S-K and information regarding

related person transactions with the

company as required by Item 404(a) of

Regulation S-K

− A brief description of (i) any material plan,

contract or arrangement (whether or not

written) to which the covered officer is a

party or in which he or she participates that

is entered into or materially amended in

connection with his/her appointment and

(ii) any grant or award to the officer, or

modification thereto, under any such plan,

contract or arrangement in connection with

such appointment (or, if such information

is not determined or is unavailable at the

time of initial filing, include a statement to

that effect in the initial filing and then file

an amendment within four business days

after the information is determined or

becomes available)

• For election of directors:

− New director’s name

− Date of election

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 50

− Brief description of any arrangement or

understanding under which the new

director was selected

− Any board committees to which the new

director has been or is expected to be

named (or, if such information is not

determined or is unavailable at the time of

initial filing, include a statement to that

effect in the initial filing and then file an

amendment within four business days after

the information is determined or becomes

available)

− Information regarding related person

transactions with the company as required

by Item 404(a) of Regulation S-K (or, if

such information is not determined or is

unavailable at the time of initial filing,

include a statement to that effect in the

initial filing and then file an amendment

within four business days after the

information is determined or becomes

available)

− A brief description of (i) any material plan,

contract or arrangement (whether or not

written) to which the covered director is a

party or in which he or she participates that

is entered into or materially amended in

connection with the election and (ii) any

grant or award to the director, or

modification thereto, under any such plan,

contract or arrangement in connection with

such election

• For adoption or amendment of material

compensatory plan, contract, arrangement or

award:

− A brief description of the terms and

conditions of the plan, contract or

arrangement and the amounts payable to

the officer thereunder

• For later executive compensation

determinations:

− The name of the named executive officer

− The salary and bonus information that was

omitted from the Summary Compensation

Table

− A new total compensation figure for the

named executive officer, using the new

salary and bonus information to recalculate

the information that was previously

provided with respect to the named

executive officer in the Summary

Compensation Table

− If the named executive officer for whom

information was not previously available is

the principal executive officer and the

company is required to provide pay ratio

disclosure under Regulation S-K Item

402(u), then include the pay ratio

disclosure required by Regulation S-K Item

402(u).

Practice Tips:

A. Practice Tips – Changes in Directors

and Officers:

1. To the extent certain information required by

Items 5.02(c) and (d) is not determined or is

unavailable at the time of the required Form 8-K

filing, a company must include a statement to this

effect in the filing and then must file an

amendment to the Form 8-K containing the

information within four business days after the

information is determined or becomes available.

2. The obligation to report under Item 5.02(b), other

than in the corporate governance policy situations

addressed below in Practice Tip 3, is triggered by

notice of a decision to resign, retire or refuse to

stand for re-election provided by a director,

principal officer or named executive officer

whether or not the notice is written and without

regard to whether the resignation, retirement or

refusal to stand for re-election is conditional or

subject to acceptance. No Form 8-K is required

under Item 5.02(b) of discussions or

considerations regarding possible resignation,

retirement or refusal to stand for re-election.

Whether communications represent non-

reportable discussions or consideration, on one

hand, or a reportable notice of a decision, on the

other hand, is a facts and circumstances

determination. Companies are required to have

appropriate disclosure controls and procedures

for determining when a reportable notice has

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 51

been communicated to the company. (SEC CDI

Question 117.01.)

3. If a company has a corporate governance policy

that requires a director to tender his or her

resignation from the board of directors upon the

occurrence of an event (such as reaching

mandatory retirement age, changing jobs or

failing to receive a majority of votes cast in an

election of directors), the company must file a

Form 8-K under Item 5.02(b) within four

business days of the board’s decision to accept

the director’s tender of resignation. If the board

does not accept the director’s tender of

resignation (and thus, the director remains on the

board), the company should consider informing

shareholders as to whether and to what extent

corporate governance policies are being followed

and enforced. (SEC CDI Question 117.15.)

4. If the company must notify a named executive

officer of the termination of his or her

employment a specified number of days prior to

the date on which the named executive officer’s

employment would end, an Item 5.02(b) Form

8-K filing requirement is triggered on the date

the company notifies the named executive

officer of his or her termination, not on the

effective date of the named executive officer’s

termination. (SEC CDI Question 217.05.)

5. Disclosure on Form 8-K is not triggered just

because the named executive is no longer

required to be included in the Summary

Compensation Table as a result of the executive

officer’s level of total compensation. (SEC CDI

Question 117.02.)

6. The board’s decision not to nominate a director

for re-election when his or her term expires does

not trigger a Form 8-K reporting obligation under

this item. However, a Form 8-K would be

required if, in response, the affected director

resigns. (SEC CDI Question 117.04.)

7. A director’s notice to the company that he or she

refuses to stand for re-election requires a Form 8-

K under this item, whether or not that notice is in

response to an offer by the company to re-

nominate the director. (SEC CDI Question

117.04.)

8. When a director who is designated by a

company’s majority shareholder gives notice that

he or she will resign if the majority shareholder

sells its entire holdings of company stock, this

notice triggers an obligation to file an Item

5.02(b) Form 8-K, which should state clearly the

nature of the contingency and the extent to which

the resigning director can control the occurrence

of the contingency. (SEC CDI Question 217.03.)

9. When a director resigns or refuses to stand for re-

election, the company must carefully consider

whether the event is reportable under Item

5.02(a) or (b). In May 2007, the SEC brought an

enforcement action against Hewlett-Packard

Company for reporting under 5.02(b), instead of

under 5.02(a), a director’s resignation with HP

regarding the handling of an internal

investigation. The SEC took the view that a

disagreement with the process chosen by the

chair and other board members to address the

director’s alleged violation of HP’s policy

regarding unauthorized public disclosures and the

board’s related decision to ask the director to

resign was a disagreement on matters “related to

the registrant’s operations, policies or practices”

that is reportable under Item 5.02(a). (In the

Matter of Hewlett-Packard Company, Release

34-55801 (May 23, 2007) and (SEC CDI

Question 217.01.))

10. A Form 8-K under Item 5.02(b) reporting the

“termination” of a principal officer or a named

executive officer is required where the principal

officer or named executive officer has his or

her duties and responsibilities removed or

reassigned to others, even if the person remains

employed or the person’s title remains the

same. (SEC CDI Question 117.03.)

11. When a principal officer temporarily turns his

or her duties over to another person, a company

must file a Form 8-K under Item 5.02(b) to

report that the original principal officer has

temporarily stepped down and under Item

5.02(c) to report that the replacement principal

officer has been appointed. If the original

principal officer returns to the position, then the

company must file a Form 8-K under Item

5.02(b) to report the departure of the temporary

principal officer and under Item 5.02(c) to

report the “re-appointment” of the original

principal officer. (SEC CDI Question 217.02.)

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 52

A potentially troublesome issue is how a

temporary surrender of duties will trigger the

filing of a Form 8-K. Disclosure is likely

triggered by a turning over of power, such as an

extended leave or reassignment that is akin to

leaving and being replaced, but should not be

triggered by a mere vacation.

12. The death of a director or executive officer is

not a triggering event under Item 5.02(b) of

Form 8-K. (SEC CDI Question 217.04.)

13. If the company appoints a new principal officer

and the company intends to make a public

announcement about the new officer by press

release (or by any other means than just Form

8-K), the instructions to Item 5.02(c) provide

the company with flexibility to delay the due

date of the Form 8-K under this item until the

day on which the other public announcement is

made. (SEC CDI Question 117.05.) However,

the retirement, resignation or termination of the

old principal officer triggers an Item 5.02(b)

Form 8-K filing requirement and the company

may not delay this filing until the filing of the

Item 5.02(c) Form 8-K. (SEC CDI Question

217.06.) The company may postpone any

related reporting required under 5.02(d)

(reporting that the officer was simultaneously

appointed to the company’s board of directors)

and any related reporting required under

5.02(e). (SEC CDI Question 117.05.) In some

circumstances, this may give the company

greater flexibility in transitioning in a new

principal officer (for example, by giving the

company added time to make internal

introductions and announcements before

publicly announcing the new officer).

However, since no similar relief is available

with respect to the required announcement of

the departure of a principal officer, in practice

there may not be many situations in which the

company delays the Form 8-K beyond its

regular due date on the fourth business day

after the event. Also, no relief is available with

respect to the Form 3 that must be filed under

Exchange Act Section 16 within 10 days of

when someone becomes an executive officer.

14. The date of the director’s election to the board

triggers the reporting requirement under Item

5.02(d), even if the director’s term will begin

on a later date. The Form 8-K should disclose

the date on which the director’s term begins.

(SEC CDI Question 117.07.)

15. Where the director’s appointment to the board

and committee assignment were disclosed

under Item 5.02(d) of Form 8-K and the

director is later assigned to a different

committee, no new Form 8-K or amendment to

the Item 5.02(d) Form 8-K is required by

Instruction 2 to Item 5.02, provided that the

change in committee assignment was not

contemplated at the time of the director’s initial

election to the board and appointment to the

committee. (SEC CDI Question 217.07.)

Similarly, if the director is not assigned to a

committee when he or she is initially elected to

the board and later assignment to a committee

is not planned or contemplated at that time,

there should not be a reporting requirement if

the director is assigned to a committee in the

future.

16. Unlike Item 5.02(e), which is limited to

material compensatory arrangements, Items

5.02(c) and (d) require disclosure of any

material plan, contract or arrangement entered

into or materially amended, in connection with

the appointment, and any grant or award

(regardless of the company’s assessment of

materiality) made to a principal officer or a

director, or modified, under any such plan,

contract or arrangement in connection with the

appointment.

17. Companies reporting the election of a new

director should consider voluntarily adding

disclosure about the director’s independence.

B. Practice Tips – Compensatory

Arrangements:

1. Items 5.02(c), (d) and (e) require a brief

description of both written and unwritten material

plans, contracts or arrangements with the covered

executive officer or director. The brief

description of the plan, contract or arrangement

does not need to comply with the more detailed

disclosure requirements of Item 402 of

Regulation S-K.

2. For purposes of Items 5.02(c), (d) and (e), the

company must make a determination as to what

constitutes a material plan, contract or agreement

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 53

with the covered executive officer or director.

This materiality standard may permit the

company to omit the reporting under Item 5.02(c)

or (d), or omit the filing of an Item 5.02(e) Form

8-K, with respect to a plan, contract or

arrangement that is covered by Item

601(b)(10)(iii) of Regulation S-K. However, the

company remains obligated to file any plan,

contract or arrangement that falls under Item

601(b)(10)(iii) of Regulation S-K as an exhibit to

its next Form 10-Q or Form 10-K even if such

plan, contract or arrangement is determined not

to be material for purposes of Item 5.02. (Refer

also to Practice Tip A.16 above regarding grants

or awards made in connection with an event

reportable under Item 5.02(c) or 5.02(d)).

3. Disclosure under Item 5.02(e) is required

whether or not the specified event is in

connection with events otherwise triggering

disclosure under Items 5.02(a)-(d) or (f).

4. Grants or awards (or modifications thereto) made

pursuant to a plan, contract or arrangement

(whether involving cash or equity) that are

materially consistent with the previously

disclosed terms of such plan, contract or

arrangement, need not be disclosed under Item

5.02(e), provided the grant, award or

modification is disclosed when Item 402 of

Regulation S-K requires such disclosure

(generally the next proxy statement) (Instruction

2 to 8-K Item 5.02(e)). In light of this

instruction, it should not be necessary to have

forms of various equity award agreements on file

prior to grant in order to avoid having to report

on Form 8-K equity grants that are materially

consistent with relevant prior disclosure. Forms

of various equity award agreements (such as

option agreements) will generally still be

required under the exhibit rules. Therefore,

companies should generally still have on file

forms of equity award agreements that indicate:

• the term of the equity awards;

• the termination provisions (including how

long the equity award remains exercisable or

vests following voluntary termination, death,

disability, retirement and termination for

cause);

• any change-in-control provisions; and

• any material forfeiture or repurchase

provisions.

The company should also consider whether any

vesting provisions currently included in filed

forms of equity award agreements are

consistent with the company’s current granting

practices and reflect the various alternative

types of vesting provisions that the company

may from time to time use.

5. In the context of a material cash bonus plan, if

prior Form 8-K disclosure indicates the potential

performance criteria upon which awards may be

based, there is no need to file a Form 8-K when

the actual targets are set. (SEC CDI Question

117.10.)

6. When the material payout under a cash bonus

plan is materially consistent with the previously

disclosed terms of the plan, no Form 8-K would

be required. However, if the company exercised

discretion to pay the bonus even though the

specified performance criteria were not satisfied,

a Form 8-K would be required, even if the plan

provided for the exercise of such discretion.

(SEC CDI Question 117.11.)

7. When reporting an annual non-equity incentive

plan award, the company is not required to

disclose the target levels with respect to specific

quantitative or qualitative performance-related

factors, or factors or criteria involving

confidential trade secrets or commercial or

business information, the disclosure of which

would result in competitive harm for the

company. (SEC CDI Question 117.12.) The

standards set forth in Instruction 3 to Regulation

S-K Item 402(b) and Instruction 2 to Regulation

S-K Item 402(e)(1) are likely to be relevant to a

determination of whether specific performance

targets can be omitted from the Form 8-K.

8. If a previously disclosed employment agreement

provides that the principal executive officer is

entitled to receive a cash bonus in an amount

determined by the compensation committee in its

discretion, an Item 5.02(e) Form 8-K would not

be required when the committee makes an ad hoc

determination of the bonus amount. Disclosure

regarding material information about the bonus

should be included in the company’s CD&A and

related disclosures under Regulation S-K Item

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 54

402. (SEC CDI Question 117.13.) A similar

analysis should apply with respect to base salary

and to situations where eligibility for

discretionary bonus or salary changes is reflected

somewhere other than in an employment

agreement and is disclosed.

9. When a company’s board adopts a new

compensatory plan subject to stockholder

approval, the obligation to file a Form 8-K under

Item 5.02(e) is triggered on the date of

stockholder approval of the plan, not on the date

of board action. (SEC CDI Question 117.08 and

SEC CDI Question 117.09.)

10. Plans, contracts and arrangements that do not

discriminate, in scope, terms or operation, in

favor of executive officers and directors and

that are available generally to all salaried

employees (for example, a Section 423-

qualified employee stock purchase plan)

typically do not need to be disclosed.

11. See also Practice Tips A.1-3 & B.1-2 under

Item 1.01 regarding the decision to file the

plan, contract or arrangement as an exhibit to

the Form 8-K rather than as an exhibit to the

next Form 10-Q or Form 10-K.

12. A company’s internal procedures need to be

adequate to ensure that the information required

by Item 5.02(f) is known to those responsible

for Form 8-K filings. Because the information

called for in this item will generally be

something of an afterthought to the proxy

statement and could be just a simple payroll

calculation once facts become known, it may be

difficult for a company to ensure that the

information is handled properly. Also, Item

5.02(f) requires disclosure when there is a

payment, grant or decision or other occurrence,

which means that the triggering date could be

difficult to ascertain absent strong internal

procedures.

13. Changes to compensatory arrangements for

non-employee directors are outside the scope of

Item 1.01 and Item 5.02(e), and therefore

generally will not trigger a Form 8-K. Note,

however, that there is a requirement to describe

director compensation under Item 5.02(d) when

a director is elected to the board other than at a

shareholder meeting. Item 5.02(d)(5) requires a

brief description of the newly appointed

director’s compensatory arrangements, even if

they are consistent with the previously

disclosed standard arrangements for the other

non-employee directors. In lieu of describing

the arrangements (but not material amendments

or grants or awards or modifications thereto),

the company may cross-reference the

description of the arrangements from the

Regulation S-K Item 402 disclosure in the

company’s most recent Form 10-K or proxy

statement. (SEC CDI Question 117.16.)

14. A termination of an executive compensation

plan should be disclosed under Item 5.02(e) if it

constitutes a material amendment or

modification of the plan. (SEC CDI Question

117.14.)

15. The automatic renewal of a named executive

officer’s employment agreement does not

trigger an Item 5.02(e) Form 8-K filing

requirement. (SEC CDI Question 217.08.)

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 55

Item 5.03

Amendments to Articles of Incorporation or

Bylaws; Change in Fiscal Year

An 8-K Is Required If:

• Amendments — The company amends its

charter or bylaws and the proposed amendment

was not disclosed in a previously filed proxy

statement or information statement

• Change in Fiscal Year — The company

determines to change the fiscal year from that

used in its most recent filing with the SEC by

means other than (i) a submission to a vote of

security holders or (ii) an amendment to its

charter or bylaws

Required Disclosure:

• For amendments:

− Effective date of amendment

− Description of the provision adopted or

changed by amendment

− Description of previous provision, if

applicable

• For changes in fiscal year

− Date of such determination

− Date of the new fiscal year-end

− Form (e.g., Form 10-Q or Form 10-K) on

which the report covering the transition

period will be filed

Practice Tips:

1. The most common changes to a charter that are

effected without prior disclosure in a proxy or

information statement are corporate name

changes and the designation of preferred stock by

a company with authorized blank check preferred

stock. Many companies designate preferred

stock in connection with the adoption of a

shareholder rights plan or a private placement of

preferred stock.

2. A company is required to file only the text of the

amended provision of its charter or bylaws with

the Form 8-K, but must file the complete

document, as amended, with its next periodic

report (i.e., Form 10-Q or Form 10-K). A

company may choose to file the entire amended

text redlined to show the new amendments.

(SEC Reg. S-K CDI Question 246.01.)

3. This item only applies to companies with a class

of equity securities registered under Section 12 of

the Exchange Act.

4. A Form 8-K is not required to be filed under this

item to report a restatement of a company’s

charter that merely consolidates previous

amendments without effecting any substantive

change. The company should, however, file the

restated charter with its next periodic report for

ease of reference by investors. (SEC CDI

Question 118.01.)

5. A Form 8-K filed in connection with an

acquisition accounted for as a reverse acquisition

should disclose under Item 5.03 of the Form 8-K

any intended change in fiscal year from the fiscal

year-end used by the registrant prior to the

acquisition.

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 56

Item 5.04

Temporary Suspension of Trading under

Registrant’s Employee Benefit Plans

An 8-K Is Required If:

• The company receives the notice required by

Section 101(i)(2)(E) of the Employment

Retirement Income Security Act of 1974

(relating to a temporary suspension of trading

under an employer benefit plan) or, if such

notice is not received by the company, the

company transmits a timely notice to an

affected officer or director within the time

period prescribed by Regulation BTR

• The company transmits a timely updated notice

to an affected officer or director, as required by

the time period under Regulation BTR

Required Disclosure:

• No later than the fourth business day after

which the company receives the notice or on

the same date by which the company transmits

notice to an affected officer or director:

− The reason or reasons for the blackout

period

− A description of the plan transactions to be

suspended during, or otherwise affected by,

the blackout period

− A description of the class of equity

securities subject to the blackout period

− The length of the blackout period by

reference to:

• The actual or expected beginning date and

ending date of the blackout period

• The calendar week (i.e., a seven-day period

beginning on Sunday and ending on

Saturday) during which the blackout period

is expected to begin and the calendar week

during which the blackout period is

expected to end, provided that the notice to

directors and executive officers describes

how, during such week or weeks, a director

or executive officer may obtain, without

charge, information as to whether the

blackout period has begun or ended; and

provided further that the notice to the SEC

describes how, during the blackout period

and for a period of two years after the

ending date of the blackout period, a

security holder or other interested person

may obtain, without charge, the actual

beginning and ending dates of the blackout

period

− The name, address and telephone number

of the person designated by the issuer to

respond to inquiries about the blackout

period, or in the absence of such a

designation, the company’s human

resources director or person performing

equivalent functions

• When the company transmits a timely updated

notice of any change to the beginning or ending

dates of the blackout period, the reasons for the

change in the date or dates and an identification

of all material changes in the information

contained in the prior notice

Practice Tips:

1. It is customary to provide the required

information by filing a copy of the notice given

to the officers and directors as an exhibit.

2. A Form 8-K is not required to report notice of

any time period that constitutes a blackout period

for purposes of the notice requirements under

ERISA, but that does not constitute a “blackout

period” under Section 306(c) of the Sarbanes-

Oxley Act and Regulation BTR. (SEC CDI

Question 119.01.)

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 57

Item 5.05

Amendments to the Registrant’s Code of Ethics,

or Waiver of a Provision of the Code of Ethics

An 8-K Is Required If:

• There is any amendment to a provision of the

company’s code of ethics that applies to the

principal executive officer, principal financial

officer, principal accounting officer, or

controller or persons performing similar

functions and that relates to any element of the

code of ethics as defined in Item 406(b) of

Regulation S-K

• The company has granted a waiver, including

an implicit waiver, from a provision of the code

of ethics to the principal executive officer,

principal financial officer, principal accounting

officer, or controller or persons performing

similar functions and the waiver relates to any

element of the code of ethics definition set forth

in Item 406(b) of Regulation S-K

“Waiver” means the approval by the company of a

material departure from a provision of the code of

ethics.

“Implicit waiver” means the company’s failure to

take action within a reasonable period of time

regarding a material departure from a provision of

the code of ethics that has been made known to an

executive officer.

“Code of ethics,” as defined in Item 406(b) of

Regulation S-K, means written standards that are

reasonably designed to deter wrongdoing and to

promote:

− honest and ethical conduct, including the

ethical handling of actual or apparent

conflicts of interest between personal and

professional relationships;

− full, fair, accurate, timely and

understandable disclosure in reports and

documents that a company files with, or

submits to, the SEC and in other public

communications made by the company;

− compliance with applicable governmental

laws, rules and regulations;

− the prompt internal reporting of violations

of the code to an appropriate person or

persons identified in the code; and

− accountability for adherence to the code.

Required Disclosure:

• Brief description of date and nature of any

amendment

• Brief description of nature and date of waiver

and person to whom a waiver was granted

Practice Tips:

1. The company does not need to file a Form 8-K

under this item if it discloses the required

information on its internet website within four

business days and it disclosed in its most recent

Form 10-K its internet address and its intention to

provide disclosure of amendments and waivers

by website posting. Information posted on the

website must remain posted for at least 12

months and must be retained for at least five

years.

2. The company must also review the requirements

of the stock exchange where its securities are

listed regarding disclosure of amendments and

waivers of a code of conduct since these

requirements vary from the SEC’s rule.

− Nasdaq Rule 5610 (and related IM-5610)

requires public disclosure within four business

days of any waiver of the code of conduct (as

required and defined by Nasdaq) for any

director or executive officer. A Nasdaq FAQ

provides that waivers for ongoing matters or

matters extending beyond one year must be

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 58

disclosed at least annually (Nasdaq FAQ ID

Number 100).

− Section 303A.10 of the NYSE Listed

Company Manual requires public disclosure

within four business days of any waiver of the

code of business conduct and ethics (as

required and defined by NYSE rules) for any

director or executive officer.

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 59

Item 5.07

Submission of Matters to a Vote of Security

Holders

An 8-K Is Required If:

• A matter was submitted to a vote of security

holders, through the solicitation of proxies or

otherwise

Required Disclosure:

• Date of the meeting and whether it was an

annual or special meeting

• A description of each election or other matter

voted upon at the meeting

• The number of votes cast for, against or

withheld, as well as the number of abstentions

and broker non-votes as to each matter,

including a separate tabulation with respect to

each nominee for office. With respect to a say-

on-frequency vote, the number of votes cast for

each of one year, two years and three years, and

the number of abstentions

• A description of the terms of any settlement

terminating a solicitation opposing director

election or removal, including the cost or

anticipated cost to the company

• The company’s decision following a say-on-

frequency vote as to how frequently the

company will hold future advisory votes on

executive compensation

If no meeting of security holders was held, the

Form 8-K need not provide the date of the meeting

or whether it was an annual or special meeting.

Instead, corresponding information with respect to

the submission of the matter to a vote must be

provided. The solicitation of any authorization or

consent (other than a proxy to vote at a

stockholders’ meeting) with respect to any matter is

deemed to be a submission of the matter to a vote

under this item.

If final voting results are not promptly available, the

company must disclose the preliminary voting

results. The company must then amend the Form 8-

K to disclose the final voting results within four

business days after the final voting results are

known.

Disclosure of the company’s decision regarding

frequency of future advisory votes on executive

compensation is due no later than 150 days after the

meeting at which shareholders held a say-on-

frequency advisory vote, but in no event later than

60 calendar days prior to the company’s deadline

for submitting Rule 14a-8 shareholder proposals.

Practice Tips:

1. The triggering event for this item occurs on the

date the shareholder meeting ends. Day one of

the four-business-day filing period is the day

after the date on which the meeting ends. (SEC

CDI Question 121A.01.) See “Filing

Mechanics.”

2. The obligation to report the number of

shareholder votes cast for, against or withheld on

a matter applies with respect to any matter

submitted to a vote of security holders, not just to

matters voted on at a meeting that involves the

election of directors. (SEC CDI Question

121A.02.)

3. Companies are not required to disclose the

number of broker non-votes with respect to the

advisory vote on the frequency of shareholder

advisory votes on executive compensation. If a

company believes this information would be

useful for investors, however, it may disclose this

information in an Item 5.07 Form 8-K. (SEC

CDI Question 121A.03.) It is common practice

to disclose the number of broker non-votes on

each matter.

4. To the extent a company is concerned that

disclosure of preliminary voting results could be

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 60

confusing to investors, it may include additional

disclosure that puts the preliminary voting results

in context.

5. Instruction 3 to this item provides that if a

company does not solicit proxies and has

previously filed a report disclosing the names of

the members of its board, and the board is re-

elected in its entirety, the company may simply

make a statement to that effect, rather than re-

stating the name of each director and the voting

results.

6. If a company has previously given security

holders proxy soliciting material containing a

description of the terms of a settlement

terminating a solicitation (including costs or

anticipated costs), it may make the required

disclosure under this item by reference to the

previous disclosure.

7. Instruction 5 to this item allows a wholly owned

subsidiary of a reporting company to omit this

item in certain circumstances if the parent has

made all required Exchange Act filings and the

subsidiary has not experienced a material default

during the preceding 36 calendar months and any

subsequent period of days.

8. Pursuant to General Instruction B.3, regarding

“previously reported” information, a company

may report Item 5.07 Form 8-K information in a

periodic report that is filed on or before the date

that an Item 5.07 Form 8-K would otherwise be

due. If a company reports its annual meeting

voting results in a Form 10-Q or Form 10-K, it

may file a new Item 5.07 Form 8-K, rather than

an amended Form 10-Q or Form 10-K, to report

its decision as to how frequently it will include a

shareholder advisory vote on executive

compensation in its proxy materials. However, if

the company reports its annual meeting voting

results in an Item 5.07 Form 8-K and also intends

to report its frequency decision in a Form 8-K,

then, as required by Item 5.07, that Form 8-K

must be filed as an amendment to the Item 5.07

Form 8-K — using submission type 8-K/A —

and not as a new Form 8-K. (SEC CDI Question

121A.04.)

9. If shareholders approved a compensatory plan at

the meeting, consider the applicability of also

reporting under Item 5.02(e) (Compensatory

Arrangements of Certain Officers).

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 61

Item 5.08

Shareholder Director Nominations

An 8-K Is Required If:

• A company did not hold an annual meeting the

previous year or the date of the annual meeting

has been changed by more than 30 calendar

days from the date of the previous year’s

meeting and the company is required to

include shareholder director nominees in the

company’s proxy materials pursuant to

applicable state or foreign law or the

company’s governing documents

Required Disclosure:

• Within four business days after the company

determines the anticipated meeting date, the

company must disclose the date by which a

nominating shareholder or shareholder group

must submit the Schedule 14N required

pursuant to Rule 14a-18

Practice Tips:

1. Item 5.08 was adopted in connection with the

SEC’s proxy access rules. The first sentence of

Item 5.08(a) appears to be inoperative, because

it implements Rule 14a-11, which was vacated.

However, the second sentence of Item 5.08(a)

remains relevant, because it refers to Rule 14a-

18, which remains in effect. Rule 14a-18

applies to a company that is required, by state or

foreign law or the company’s governing

documents, to include shareholder director

nominees in its proxy materials.

2. Rule 14a-18 provides that the deadline for

submitting notice on Schedule 14N of

shareholder nominees to be included in a

company’s proxy materials is either the date

specified in the company’s advance notice

bylaw or, if none, no later than 120 calendar

days before the anniversary of the date that the

company mailed its proxy materials for the

prior year’s annual meeting, unless the

company either did not hold an annual meeting

in the prior year or the date of the meeting has

changed by more than 30 calendar days from

the prior year, in which case the nominating

shareholder or nominating shareholder group

must submit the notice on Schedule 14N a

reasonable time before the company mails its

proxy materials, as specified by the company in

an Item 5.08 Form 8-K.

3. The Item 5.08 four-business-day deadline

appears in the last sentence of General

Instruction B.1.

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 62

Item 7.01

Regulation FD

Disclosure

This item applies when the company wants to use

Form 8-K to satisfy its obligations under Regulation

FD and it desires to have the Form 8-K be deemed

to be furnished rather than filed. The deadline

under this item is determined by the requirements of

Regulation FD. See “Filing Mechanics – Filing

Deadlines” and “Filing Mechanics – The Filed vs.

Furnished Distinction” for more information.

Item 8.01

Other Events

This item is used when the company voluntarily

wants to disclose any event that it deems of

importance to security holders and with respect to

which information is not otherwise required by

Form 8-K. Since this use of Form 8-K is voluntary,

there is no filing deadline.

In addition, this item applies when the company

wants to use Form 8-K to satisfy its obligations

under Regulation FD and it desires to have the

Form 8-K be deemed to be filed rather than

furnished. The filing deadline in this case is

determined by the requirements of Regulation FD.

See “Filing Mechanics – Filing Deadlines” and

“Filing Mechanics – The Filed vs. Furnished

Distinction” for more information.

Item 9.01

Financial Statements

and Exhibits

This item is used to file financial statements and pro

forma financial information for transactions

required to be described by Item 2.01. See

“Reportable Items – Item 2.01” for more

information.

This item is also used to furnish or file other

required exhibits. See “Filing Mechanics – Exhibit

Requirements” for more information.

If required financial statements or pro forma

financial information is not included in the initial

Form 8-K, but will be provided by amendment, the

initial Form 8-K must state when the required

information will be filed.

The automatic 71-day extension of time in Item

9.01 of Form 8-K is available only with respect to

acquisitions, not dispositions. (SEC CDI Question

129.01.)

With respect to a disposition that must be reported

under Item 2.01 (i.e., an asset disposition or a

business disposition that exceeds 10% or 20%

significance, respectively), pro forma financial

statements reflecting the disposition are required to

be filed within four business days of the disposition.

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 63

Impact on Controls and Procedures

Public companies are required to maintain

disclosure controls and procedures that are designed

to ensure that information required to be disclosed

by the company in the reports that it files or submits

under the Exchange Act is recorded, processed,

summarized and reported within the time periods

specified in the SEC’s rules and forms. Disclosure

controls and procedures include, without limitation,

controls and procedures designed to ensure that

information required to be disclosed by a company

in the reports that it files or submits under the

Exchange Act is accumulated and communicated to

the company’s management, including its principal

executive and principal financial officers, as

appropriate to allow timely decisions regarding

required disclosure.

A company’s obligations with respect to disclosure

controls and procedures encompasses information

required to be disclosed on Form 8-K.

In light of the ongoing nature of a company’s Form

8-K reporting obligations, in contrast to the periodic

nature of Form 10-K and 10-Q reporting, the

processes used to ensure that Forms 10-K and 10-Q

are accurate and complete are not likely to be

sufficient for timely identifying Form 8-K

reportable events. Accordingly, the company’s

disclosure controls and procedures must be

designed to ensure timely reporting of the 8-K

reportable events. We recommend the following in

connection with the company’s establishment and

periodic evaluations of its disclosure controls and

procedures relating to Form 8-K:

1. Identify Who Is Most Likely to First Become

Aware of Each Triggering Event. The

company’s Disclosure Committee should review

each type of 8-K reportable event and identify the

persons in the company who are most likely to

first become aware of each event. For example:

• A life sciences company engaged solely in

clinical and preclinical trials may identify

its CEO, CFO, chief scientist and head of

business development as the people in its

organization most likely to be aware of

new agreements that might need to be

reported under Item 1.01.

• A manufacturing company with

international operations may identify its

CFO, controller, treasurer, divisional

financial heads, divisional presidents, head

of procurement and head of sales as the

people in its organization most likely to be

aware of new agreements that might need

to be reported under Item 1.01.

• A technology dependent organization may

identify its CIO (chief information officer)

or CISO (chief information security

officer) as the person in its organization

most likely to first be aware of a

cybersecurity incident that might need to be

reported under Item 1.05.

Once the Disclosure Committee identifies the

relevant people for each item, it should educate

them about the 8-K reporting requirements and

the process for communicating information

about events that might trigger a Form 8-K

requirement to the persons within the company

responsible for preparing and filing Form 8-Ks.

It would also be appropriate to periodically

educate an even larger group of employees in

order to raise the organization’s overall

awareness of the company’s Form 8-K

reporting obligations.

2. Educate the Board About 8-K Triggering

Events. When considering who in the

organization is most likely to first become aware

of various reportable events, do not forget about

the board of directors. The company’s directors

should be aware, in advance, whether actions

they authorize will trigger a Form 8-K filing

requirement. For some reportable events, such as

the election of new directors, decisions about

impairment charges and entry into new

compensation arrangements with named

executive officers, one of the first persons likely

to become aware of the occurrence of a

reportable event is the chair of the board or the

chair of the audit, compensation or nominating

committee. Since boards often meet in executive

session without members of management present

and key board committees no longer include

members of management, it is important for the

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 64

directors with primary responsibility for setting

board and committee agendas to consider how

they will timely communicate matters to

management and to the persons within the

company responsible for preparing and filing

Form 8-Ks.

3. Pay Special Attention to Resignations and

Other Officer and Director Changes. Timely

identifying when a Form 8-K is required to report

the departure of an executive officer or director

has proven to be a significant challenge because

the line between non-reportable “discussions and

considerations” and reportable “notice” of

resignation is often unclear. Since Items 5.02(a)

and 5.02(b) of Form 8-K are not covered by the

safe harbor, the consequence of a late filing can

be drastic. Accordingly, it is important that

appropriate controls and procedures be put in

place with respect to these items. Some

possibilities include:

• periodic education of, and reminders to,

directors and officers regarding the events

that trigger a Form 8-K, and

• a board policy or bylaw that all directors

must provide directly to the corporate

secretary written notice of a decision to

resign or refuse to stand for re-election.

4. Have an Effective Disclosure Committee.

Because decisions as to whether an 8-K

reportable event has occurred need to be made

frequently and in a short timeframe, the company

should review the membership and operating

practices of its Disclosure Committee with a goal

of ensuring that the committee consists of

members who:

• will be able to respond in a timely manner

to disclosure questions that come up

between regularly scheduled meetings of

the Disclosure Committee, and

• have the knowledge and understanding of

the company and applicable securities law

to be able to quickly analyze materiality

questions.

Companies that have a large number of

members on their Disclosure Committee may

want to consider identifying a subcommittee of

those members to play the primary role in

analyzing Form 8-K disclosure questions.

5. Make Sure Multiple People Learn About the

Occurrence of a Triggering Event. In light of

the short timeframes for identifying and

analyzing Form 8-K reportable events and

preparing the Form 8-K, the company should

have processes that will result in multiple

members of the Disclosure Committee being

made aware of events that may need to be

reported on a Form 8-K. A process that results in

news only flowing to a single member of the

Disclosure Committee might result in loss of

critical time if that person is temporarily

unavailable for any reason.

6. Consider in Advance What Would Be

Material. Since several of the reportable events

contain a materiality standard, the Disclosure

Committee should develop rules of thumb to be

used in helping identify potentially material

events. For example, Item 2.03 requires a Form

8-K filing when a company incurs direct

financial obligations that are material to the

company. The company should establish some

upfront quantitative guideposts as to what would

be a material amount of debt. While quantitative

rules of thumb are helpful in separating routine

borrowings from material borrowings, the

company should keep in mind that materiality is

a facts and circumstances determination that must

ultimately be assessed in a qualitative manner,

taking into account all relevant factors. The

Disclosure Committee should regularly reassess

any rules of thumb that the company establishes

in order to confirm their continued validity in

light of changing business circumstances.

7. Track All Unregistered Sales of Securities.

The company should establish a process for

tracking all unregistered sales of equity securities

on a continuous basis.

8. Review Policy Regarding Authorized

Signatories. The company should periodically

review its policy regarding authorized signatories

for material contracts. The company may also

want to adopt formal policies requiring legal

department review of potentially material

contracts prior to signing.

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 65

9. Carefully Prepare Minutes. The minutes of

board and committee meetings should be

carefully prepared so they clearly distinguish

between discussions about possible actions (such

as restructurings) and the taking of definitive

action committing the company to a course of

action (such as the adoption of a restructuring

plan).

10. Update 10-K and 10-Q Processes. The

company’s process for collecting data needed

to complete Forms 10-K and 10-Q should

encompass the Form 8-K reportable events. As

discussed in the next section, “Liabilities and

Limited Relief,” the safe harbor provided with

respect to certain of the reportable events is

only available until the next periodic report is

due. Therefore, it is important in the course of

preparing Forms 10-Q and 10-K for the

company to:

• determine whether the company failed to

identify any Form 8-K reportable events

during the past quarter, and

• reassess any close materiality

determinations during the quarter that

served as a basis for not reporting an event

on Form 8-K.

If the company discovers that reportable events

did occur during the quarter but were not

properly reported on Form 8-K, in addition to

reporting the event as part of the next Form 10-

K or Form 10-Q, the company must consider

whether this discovery suggests an

ineffectiveness of the company’s disclosure

controls and procedures that must be redressed

or reported in connection with the next Form

10-K or Form 10-Q.

11. Update Cybersecurity Controls and

Procedures. In light of the obligation under

Item 1.05 of Form 8-K to disclose material

cybersecurity incidents and the availability of

Item 7.01 or Item 8.01 to voluntarily disclose

cybersecurity incidents before an incident has

been determined to be material, the company

should: evaluate its incident response plan or

other cyber oversight policies and practices to

assess the impact of the Item 1.05 disclosure

requirements (including the timeframe for such

disclosure following a materiality determination);

make changes to its disclosure controls and

procedures as appropriate (including creating a

framework for assessing the materiality of

cybersecurity incidents); and, conform its

documentation to reflect the company’s updated

practices and control environment. In

implementing these steps, the company should

keep in mind that timely Form 8-K disclosure

will hinge on effective communications among

many potential stakeholders, including

technology teams, external reporting groups,

legal teams, management, consultants, and

auditors.

12. Document Your Disclosure Controls and

Procedures. After implementing whatever

process changes are deemed appropriate, the

company should update its documentation

regarding disclosure controls and procedures in

order to conform its documentation to the

company’s current practice.

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 66

Liabilities and Limited Relief

General Antifraud Rules Apply

The company is subject to Section 10(b) of the

Exchange Act and Rule 10b-5 liability for material

misstatements or omissions in a Form 8-K.

The SEC has explicitly and repeatedly reminded

companies that, pursuant to Rule 12b-20 under the

Exchange Act, any disclosure made in a Form 8-K

must include all material information that is

necessary to make the required disclosure, in light

of the circumstances under which it is made, not

misleading.

Limited Safe Harbor for Section 10(b) and

Rule 10b-5 Liability

Exchange Act Rules 13a-11 and 15d-11 provide a

limited safe harbor from public and private claims

under Section 10(b) of the Exchange Act and Rule

10b-5 thereunder for a failure to file timely a Form

8-K for certain items that may require management

to assess quickly the materiality of an event or

determine whether a disclosure obligation has been

triggered. Those items are listed in the table on the

right.

The safe harbor only applies to a failure to file a

report on Form 8-K. Material misstatements or

omissions in a Form 8-K will continue to be subject

to Section 10(b) and Rule 10b-5. In addition, the

safe harbor will not provide protection from Section

10(b) and Rule 10b-5 liability that may arise from a

company’s failure to satisfy a separate disclosure

obligation and will not provide protection from

liability under Section 13(a) or 15(d) of the

Exchange Act. Accordingly, the SEC has the

ability to enforce the Form 8-K filing requirements

even with respect to the items covered by the safe

harbor.

Items to Which the Limited Safe

Harbor Applies

Item No. Subject Matter

1.01 Entry into a Material

Definitive Agreement

1.02 Termination of a Material

Definitive Agreement

1.05 Material Cybersecurity

Incidents

2.03 Creation of a Direct

Financial Obligation or an

Obligation under an Off-

Balance Sheet Arrangement

of a Registrant

2.04 Triggering Events that

Accelerate or Increase a

Direct Financial Obligation

or an Obligation under an

Off-Balance Sheet

Arrangement

2.05 Costs Associated with Exit

or Disposal Activities

2.06 Material Impairments

4.02(a) (limited to the

situation where a

company makes the

determination and

does not receive a

notice from its

accountant)

Non-Reliance on Previously

Issued Financial Statements

or a Related Audit Report or

Completed Interim Review

5.02(e) Compensatory

Arrangements of Certain

Officers

6.03 Change in Credit

Enhancement or Other

External Support (for ABS

issuers)

The safe harbor extends only until the due date of

the company’s periodic report for the relevant

period in which the Form 8-K was not timely filed.

For example, if an event occurs that required the

filing of a Form 8-K during a particular quarter, but

the company fails to make the required timely

disclosure on Form 8-K, the company must provide

the disclosure required by the relevant Form 8-K

item in its Form 10-Q filed for the quarter during

WILMERHALE KEEPING CURRENT WITH FORM 8-K | 67

which that event occurred. Failure to make such

disclosure in the periodic report will subject a

company to potential liability under Section 10(b)

and Rule 10b-5, in addition to the potential liability

under Section 13(a) or 15(d) of the Exchange Act.

Eligibility to Use Form S-3 and to Rely on

Rule 144

In general, a company’s failure to timely file a

Form 8-K results in a loss of Form S-3 eligibility

for the succeeding 12 months. However, the failure

to timely file Form 8-K reports pursuant to the

following items does not cause the loss of Form S-3

eligibility: 1.01, 1.02, 1.04, 1.05, 2.02, 2.03, 2.04,

2.05, 2.06, 4.02(a), 5.02(e). A company must,

however, be current in its Form 8-K filings at the

actual time of a Form S-3 filing.

In very limited circumstances, the SEC staff will

grant a waiver allowing the company to retain Form

S-3 eligibility. The SEC staff will consider whether

to grant a waiver in light of all the relevant

circumstances. However, the longer the delay

between the triggering event and the late Form 8-K

filing, the more difficult it is for the staff to grant a

waiver. When granted, waivers are communicated

orally. The company should consult with its

contacts at WilmerHale on this issue.

Because an Item 2.02 8-K is furnished, not filed, the

late submission of an Item 2.02 Form 8-K does not

affect a company’s eligibility to use Form S-3.

(SEC CDI Question 106.05.)

Rule 144 under the Securities Act provides that a

company does not need to have filed all required

Form 8-K reports during the 12 months preceding a

sale of securities pursuant to Rule 144 to satisfy the

rule’s “current public information” condition.

However, the seller’s Form 144 includes the

representation that the seller “does not know of any

material adverse information in regard to the current

and prospective operations of the Issuer of the

securities to be sold which has not been publicly

disclosed.”

Filing Liability

Notwithstanding the limited safe harbor provided

under the Form 8-K rules, the company should not

lose sight of the fact that the SEC retains the ability

to enforce the Form 8-K filing requirements under

Sections 13(a) and 15(d) of the Exchange Act and

that a company’s disclosure controls and procedures

must encompass Form 8-K.

APPENDIX A:

FORM 8-K

The version of Form 8-K that follows was downloaded on December 13, 2024 from the SEC’s website sec.gov

at https://www.sec.gov/files/form8-k.pdf.

APPENDIX B:

COMPLIANCE AND DISCLOSURE INTERPRETATIONS:

EXCHANGE ACT FORM 8-K

0 views·140 pages

Keeping Current with Form 8-K PDF Free Download

Keeping Current with Form 8-K PDF free Download. Think more deeply and widely.

Uploaded by laura529339 on 4/9/2026

/140

100%